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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


W.   MANDEVILLE   TROY 

ATTORNEY- AT- LAW 
OLEAW.N.  Y. 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/claimsfixingtheiOOdeisiala 


CLAIMS 
FIXING  THEIR  VALUES 


Publiahea  by  the 

McGraw-Hill   Book.  Company 

New  York. 

^ucce&sons  to  tKeBookDepartmentA  of  tKe 

McGrav  Publishing  Gjmpany  Hill  Publishing  Company 

FViblishera  of  books  foi* 
Electrical  World  The  Engineering  and  Mining  Journal 

Engineering  Record  American   MocKiniat 

Electric  Railway  Journal  Coal  Age 

Metallurgica]  and  Chemical  Engineering  Power 


CLAIMS 

FIXING  THEIR  VALUES 


BY 

GEORGE  F.  DEISER,  A.  B.,  LL.  B. 


OP  THE   PHILADELPHIA   BAR 


AND 


FREDERICK  W.  JOHNSON 

FORMERLY  ASSISTANT  GENERAL  CLAIM  AGENT 


McGRAW-HILL   BOOK  COMPANY 

239  WEST  39TH  STREET,  NEW  YORK 

6  BOUVERIE  STREET,  LONDON,  E.  C. 

1911 


Copyright,  1911 

BY 

McGraw-Hill  Book  Company 


T 


Printed  and  Electrotyped 

by  The  Maple  Press 

York,  Pa. 


CONTENTS 


CHAPTER  I 


INTRODUCTION 


Qualifications  for  successful  claim  work. 

The  basis  and  valuation  of  a  claim. 

The  frame  of  mind  in  which  a  claim  should  be  approached. 

Investigation  of  the  facts.     Thoroughness  the  key-note. 

Treatment  of  the  facts. 

The  question  of  liability.     Its  determination. 

Various  factors  that  determine  the  value  of  the  claim. 


CHAPTER  II 

MISHAP,    LIABILITY    OR   NON-LIABILITY 

8.  Liability  not  the  result  of  every  accident. 

9.  Cases  where  liability  is  certain. 

10.  Fixing  responsibility. 

1 1 .  Negligence.     Tests  of  fault  or  negligence. 

12.  Determination  of  liability. 

13.  Duties  and  their  violation. 

14.  From  what  has  the  injury  resulted? 

15.  Definitions. 

16.  When  does  a  person  owe  a  duty  to  another? 

17.  Care  must  be  in  proportion  to  the  danger. 

18.  Attractive  dangers. 

19.  Lawful  acts  done  in  an  unlawful  manner. 

20.  The  basis  of  actions  for  damages,  proximate  cause. 

21.  Natural  and  probable  consequences. 

22.  Determination  of  the  cause  of  a  mishap. 

CHAPTER  III 

FACTS    IN    AVOIDANCE    OF    LIABILITY 

23.  Qualification  of  liability. 

24.  Contributory  negligence. 

25.  Persons  under  disability. 

26.  Imputation  of  negligence. 


767709 


VI  CONTENTS 

27.  Injuries  due  to  acts  of  third  persons. 

a 8.  Children  of  tender  years. 

29.  Injuries  to  employees.     Liability  or  non-liability. 

30.  Employer's  liability. 

31.  The  basis  of  a  claim  for  personal  injury. 

32.  Former  condition  of  claimant  as  a  key  to  present  condition. 

CHAPTER  IV 

NATURE   AND   EXTENT   OF    INJURIES    SUSTAINED 

33.  Physical  examination  of  claimant. 

34.  Its  part  in  determining  the  value  of  the  claim. 

35.  Permanent  injuries. 

36.  Previous  injuries. 

37.  The  claimant's  statement. 

38.  Application  of  principles. 

39.  Examples. 

40.  Analysis  of  Case  I. 

41.  Examples. 

42.  Exaggerated  statements. 

43.  Summary. 

CHAPTER  V 

THE   FACTS    OF   THE   OCCURRENCE 

44.  Investigation  of  facts. 

45.  Principles  of  investigation. 

46.  Interviewing  company  employees. 

47.  Interviewing  the  claimant. 

48.  Interviewing  the  witnesses. 

49.  Witnesses  classified. 

50.  Forms  of  evidence. 

51.  Attending  physician. 

52.  The  physical  examination. 

53.  Special  features. 

54.  The  scene  of  the  accident.     Detailed  reports. 

55.  Unreported  accidents. 

56.  Previous  accidents  or  claims. 

57.  Attitude  of  management. 

58.  Impartial  investigations. 

59.  Prompt  investigations. 

60.  Thorough  investigations. 

61.  Clean  investigations. 

CHAPTER  VI 

FACTS  IN  MITIGATION   OR  ENHANCEMENT  OF  DAMAGES 

62.  What  diminishes  the  value  of  a  claim? 

63.  Treatment  of  the  problem. 


CONTENTS  VU 

Examples. 

Analysis  of  claimant's  condition  and  history. 

The  age  of  the  claimant. 

Difficulty  of  this  investigation. 

What  increases  the  value  of  a  claim? 

Dependence  of  others  on  claimant. 

Settlement  should  include  all  claims  for  the  injury. 

Statutes  of  limitation. 

Foreigners  residing  abroad. 

Sex  of  the  claimant.     Menopause  period. 

Pregnancy. 

Summary. 

CHAPTER  VII 

FACTS   INFLUENCING  QUESTIONS  OF  SETTLEMENT. 

Subordinate  factors  affecting  the  value  of  a  claim. 
Personality  of  opponents. 

Claimant's  counsel.  • 

Policy  of  the  company.     The  public. 
Injured  employees.     Their  legal  rights. 
Law  of  employer's  liability. 
Common  law  liability  of  employers. 

Common   law   liability   of   employers.     General  principles. 
Negligence  as  to  young  or  inexperienced  servants. 
Duties  of  the  employer. 
Effect  of  entrusting  duty  to  others. 
What  kind  of  appliances  must  the  employer  furnish? 
Fellow  servant  doctrines. 

Fellow  servants,  those  engaged  in  common  employment. 
What  is  not  a  common  employment? 
Association  as  a  test  of  common  employment. 
Specific  instances  of  common  employment. 
Risks  which  the  servant  is  considered  to  have  assumed. 
Modification  of  common  law  liability.     Employer's  liability 
acts. 

Discussion  of  employer's  liability  in  the  United  States. 
Employer's  liability  acts  in  force  in  the  United  States. 

CHAPTER  VIII 

CHARACTER  AND  STRENGTH  OF  EVIDENCE 

97.  Evidence.     What  it  is. 

98.  Burden  of  proof. 

99.  Presumptions. 


VUl  CONTENTS 

loo.  Hearsay. 

loi.  Res  Gestae, 

loa.  Opinions. 

103.  Expert  testimony. 

104.  Documentary  evidence. 

105.  Distinction  between  legal  evidence  and  evidence  in  general. 

106.  The  distinction  illustrated. 

107.  Circumstantial  evidence. 

108.  Character  of  witnesses. 

109.  Number  of  witnesses.     Conflicting  statements.     How  to 
reconcile  them. 

no.  Claimant's  account  of  accident. 

111.  Attendance  of  witnesses. 

112.  Veracity  of  witnesses. 

113.  Competency  of  witnesses. 

CHAPTER  IX 

LITIGATION.      FACTORS   AND   EFFECTS 

114.  Basis  of  settlement  of  litigation. 

115.  Verdicts  previously  rendered  in  similar  cases. 

116.  Possibility  of  making  new  law. 

117.  Non-suits. 

CHAPTER  X 

FRAUD 

118.  Evil  tendencies  of  the  practice. 

119.  Subject  to  be  approached  with  unbiased  mind. 

120.  Prompt  action  if  fraud  is  present. 

121.  Classification  of  fraud. 

122.  Premeditated  fraud.  i 

123.  Casual  fraud. 

124.  Complexity  of  the  situation. 

125.  Manufacture  of  evidence. 

126.  Exaggerated  statements. 

127.  The  legal  profession. 

128.  The  medical  profession. 

129.  Location  as  affecting  fraud. 

130.  Boarding  and  alighting  accidents. 

131.  Nature  and  extent  of  injury. 

132.  Severity  of  injury. 

133.  Mystery  surrounding  a  claim. 

134.  Attempted  concealments. 

135.  Previous  accidents. 


CONTENTS  ix 


136.  Professional  claimants. 

137.  Deliberate  concealment. 

138.  Substituted  claimants. 

139.  Fraud  as  to  earning  capacity. 

140.  Past  history  or  reputation. 

141.  Difference  of  occupations. 

142.  Difference  of  occupations. 

143.  Natives  of  different  countries. 

144.  Conclusion. 

CHAPTER  Xi 

CONCLUSION 

145.  A  claim  as  a  problem. 

146.  Accurate  reasoning  as  an  asset. 

147.  Fair  treatment  of  claimant. 


CLAIMS 
FIXING  THEIR  VALUES 


CHAPTER  I 

INTRODUCTION 


Qualifications  for  successful  claim  work. 

The  basis  and  valuation  of  a  claim. 

The  frame  of  mind  in  which  a  claim  should  be  approached. 

Investigation  of  the  facts.     Thoroughness  the  key-note. 

Treatment  of  the  facts. 

The  question  of  liability.     Its  determination. 

Various  factors  that  determine  the  value  of  the  claim. 


1.  Qualifications  for  successful  claim  work. 

A  little  knowledge,  it  has  often  been  said,  is  a 
dangerous  thing.  It  has  likewise  been  said  that  a 
man  who  is  his  own  lawyer  has  a  fool  for  a  client. 
As  a  matter  of  fact,  these  proverbs,  like  all  others, 
contain  a  half  truth  and  a  half  error.  Proverbs  in 
fact  never  lead  to  anything  except  to  make  a  man 
dissatisfied  with  what  he  is  doing.  The  purpose  of 
this  work  is  to  provide  those  for  whom  it  is  designed 
with  a  little  knowledge  that  shall  not  be  dangerous. 
Claim  work  is  a  field  so  closely  related  to  the  law  that 
the  pursuit  of  the  one  profession  frequently  leads  to 
the  other  with  little  apparent  effort.  For  certain  of 
the  same  qualifications  make  for  success  in  both. 
Our  purpose  here  is  to  equip  the  claim  adjuster  with 
the   information   and   knowledge   that   will   assist   in 


2  CLAIMS    FIXING    THEIR   VALUES 

making  him  efficient  in  the  performance  of  his  duties. 
Let  it  be  understood  that  the  work  of  a  claim  agent 
is  as  varied  and  requires  as  ready  and  thorough  a 
knowledge  of  human  nature  as  that  of  any  other  pro- 
fession. As  he  is  so  closely  allied  with  the  law,  he 
must  have  a  fair  legal  equipment.  He  must  have  not 
a  little  medical  knowledge;  not  a  little  knowledge  of 
the  weaknesses  of  human  nature. 

2.  The  basis  and  valuation  of  a  claim. 

An  honorable  man  will  not  stoop  to  anything, 
even  for  his  bread  and  butter,  to  defraud  a  claimant. 
At  the  same  time  he  is  bound  to  know  that  there  are 
many  who  make  their  living  by  preying  on  others  and 
the  corporation  with  supposedly  inexhaustible  coffers 
has  ever  been  considered  legitimate  prey.  A  claim 
agent  or  adjuster  may  be  termed  or  defined  briefly 
a  professional  measurer  of  damages.  The  proportion 
of  all  litigation  devoted  to  claims  for  damages,  arising 
out  of  injuries  inflicted  through  lack  of  care,  is  so  great 
that  the  courts  and  the  litigants  have  come  to  regard 
it  as  an  incubas,  or  as  a  pursuing  "Nemesis"  never  to 
be  shaken  off  and  ever  increasing  in  size.  One  of  the 
most  difficult  tasks  that  can  be  attempted  is  to  decide 
in  dollars  and  cents  what  shall  be  paid  for  the  loss  and 
suffering  incident  to  the  infliction  of  physical  injuries. 
Modem  law  is  filled  with  attempts  to  set  arbitrary 
standards  for  the  value  of  a  broken  leg,  a  dislocated 
arm,  a  bruised  foot.  But  added  to  this,  is  that  uncer- 
tain element  known  as  damages  for  physical  suffering. 
We  shall  attempt  to  make  definite  as  far  as  possible 
those  factors  that  enter  into  the  valuation  of  a  claim- 
ant's loss.  When  a  person  has  been  injured  through 
negligence,  has  been  harmed  by  his  neighbor  in  such 
a  way  that  the  law  makes  him  accoimtable  to  pay  for 


INTRODUCTION  3 

it,  there  is  one  general  principle  that  controls.  The 
person  injured  is  entitled  to  fair  compensation — no 
more — no  less.  He  is  entitled  to  have  his  loss  made 
good.  And  this  compensation  is  measured  by  the 
various  financial  and  other  losses  that  have  come  to 
the  claimant  through  the  neglect  of  which  he  complains. 

3.  The  frame  of  mind  in  which  a  claim  should  be  approached. 

It  is  needless  to  say  that  none  of  the  activities  of 
life  can  be  successfully  conducted'  without  some 
knowledge  of  human  nature.  But  in  claim  work, 
this  is  the  adjuster's  largest  asset.  He  is  valueless 
unless  the  lines  of  the  physiognomy,  the  play  of  the 
features,  and  the  general  demeanor  tell  him  instantly 
their  story  of  insincerity  or  sincerity.  A  claim  that  is 
sincerely  presented  and  honestly  set  forth  is  worthy 
of  a  hearing  and  fair  treatment.  Aside  from  the  legal 
rights  of  the  claimant,  his  moral  rights  should  receive, 
in  such  a  case,  proper  consideration  even  though  his 
legal  rights  are  slight.  It  is  only  through  a  knowledge 
of  the  motives  that  influence  our  fellow  men  that  an 
adjuster  can  deal  successfully  with  his  problems.  He 
must  see  through  the  insinuating  manner,  the  appeal  to 
the  emotions,  the  glossing  over  of  damaging  facts.  Of 
the  various  phases  of  the  problems  that  human  nature 
presents,  we  shall  treat  under  specific  frauds.  It  is 
necessary  only,  by  way  of  introduction,  to  suggest  what 
a  really  large  part  of  the  adjuster's  equipment  a 
knowledge  of  human  nature  forms.  Second  only  to 
this  is  the  adjuster's  ability  to  deal  with  facts  in  an 
impartial  way.  It  is  our  tendency  to  apply  to  all  our 
hurts  a  salve  of  self-deceit,  which  sooths  our  vanity 
and  leads  us  to  minimize  the  dangers  that  face  us.  In 
claim  work,  this  is  a  tendency  that  can  lead  only  to- 
defeat.     A  man  must  be  able  to  appraise  truly  the 


4  CLAIMS    FIXING    THEIR    VALUES 

facts  that  are  against  him  and  to  appreciate  at  their 
fvill  value,  and  only  at  their  full  value,  the  facts  that 
are  in  his  favor.  If  he  exaggerates  his  own  side  and 
depreciates  his  opponent's  side,  he  is  doomed  to 
failure.  Besides  this,  his  investigation  of  facts  forms 
the  basis  of  the  action,  either  of  his  superiors,  or  in  the 
more  extreme  cases,  of  his  attorneys  in  court,  and  the 
slight  exaggeration  that  he  may  have  been  guilty  of 
to  make  his  case  look  better  is  carried  down  the  line, 
increasing  in  intensity  as  it  goes.  It  may  involve  the 
loss  of  litigation  and  the  payment  of  unfounded  claims. 

4.  Investigation  of  the  facts.     Thoroughness  the  key-note. 

Before  the  facts  can  be  weighed,  they  must  be 
investigated.  This  investigation  cannot  be  made  too 
thorough.  It  would  be  well  to  have  a  more  or  less 
stereotyped  order  of  procedure  that  one  might  follow 
mechanically  until  the  general  field  of  investigation 
had  been  covered,  after  which  the  adjuster  or  inves- 
tigator should  supplement  this  information  by  any- 
thing that  might  seem  important.  Let  us,  by  way  of 
introduction,  dwell  only  on  this  fact.  The  investiga- 
tion must  be  thorough;  it  must  cover  all  of  the  facts 
of  the  occurrence,  however  trivial.  No  advantage 
results  to  anyone  by  a  biased  statement  of  facts  or  by 
coloring  them  to  make  them  look  more  favorable  to 
his  own  side  of  the  case.  If  an  adjustei  knows  the 
moment  he  appears  upon  the  scene  that  his  motorman 
was  intoxicated,  he  is  bound  to  include  that  in  his 
statement  of  facts.  To  gloss  it  over  by  saying  that  he 
smelled  of  liquor  but  was  capable  of  managing  a  car 
carefully,  is  to  invite  disaster.  To  include  the  state- 
ments of  three  by-standers  that  a  bell  was  rung  and 
to  exclude  the  statement  of  three  others  who  said 
that  the  bell  was  not  rung,  is  equally  to  invite  disaster. 


INTRODUCTION  5 

5.  Treatment  of  the  facts. 

Let  us  recall,  however,  that  it  is  our  purpose  to  con- 
sider all  of  the  facts  and  circumstances  that  bear  upon 
the  value  of  a  claim  for  damages  based  upon  personal 
injuries.  These  facts,  circumstances,  or  factors  are 
extremely  varied,  and  predominance  must  sometimes 
be  given  to  one  and  sometimes  to  another.  We  have 
insisted  first  upon  absolute  sincerity  in  the  treatment 
of  the  facts  under  investigation — of  the  necessity  of 
avoiding  self-deceit  in  any  degree.  The  first  considera- 
tion of  anyone  who  seeks  to  determine  the  value  of  a 
claim  is  to  become  acquainted  with  the  facts.  Too 
thorough  an  investigation  of  the  facts  can  scarcely  be 
made.  They  must  be  sifted  and  arranged  and  verified 
by  proof  so  that  when  an  investigator  has  presented  a 
statement  of  facts  he  has  not  only  given  the  circiun- 
stances  of  the  case,  but  he  has  shown  by  citing  the  par- 
ticular witnesses  whom  he  can  produce  to  prove  each 
individual  fact,  how  the  case  is  to  be  proved.  So  that 
the  first  and  most  important  factor  to  be  considered  is 
what  are  the  facts  and  circumstances  concerning  the 
accident.  Again,  liability  for  negligence  arises  from 
injury  to  persons  and  damage  to  property.  So  far  as 
the  facts  are  concerned,  the  investigation  in  each  case 
is  much  the  same.  The  facts  must  be  fully  known  and 
investigated. 

6.  The  question  of  liability.     Its  determination. 

The  facts  having  been  made  clear,  the  question  im- 
mediately arises,  "Who,  if  anyone,  is  liable  to  pay  for 
the  injuries  done?"  This  is  an  inquiry  more  or  less  of 
a  legal  nature.  To  solve  it  requires  a  knowledge  of 
the  law  of  negligence.  This  is  a  matter  that  is  open  to 
the  investigation  of  any  man  of  intelligence.  It  is  no 
more  advisable  to  run  with  every  occurrence  of  any 


6  CLAIMS    FIXING    THEIR    VALUES 

kind  to  the  lawyer  than  it  is  necessary  to  run  to  the 
doctor  every  time  one  stubs  his  toe.  The  claim  depart- 
ment necessarily  has  to  determine  for  itself  in  most 
cases  whether  or  not  it  is  going  to  pay  and  if  so,  how 
much.  This  it  does  almost  invariably  without  con- 
sulting its  attorney.  What  we  are  dealing  with  at  the 
present  time  is  the  appraisement  of  the  value  of  a  claim 
with  or  without  reference  to  the  possibility  of  legal  en- 
forcement. 

7.     Various  factors  that  determine  the  value  of  the  claim. 

Having  considered  the  question  of  liability  and  of  the 
necessity  of  a  knowledge  of  the  law  of  negligence,  we 
must  consider  certain  factors  that  modify  liability — 
those  that  constitute  a  defense  to  liability.  First  of 
these  is  the  fact  that  the  claimant  has  contributed  to 
his  own  injuries.  The  second  is  that  the  injuries  for 
which  he  now  claims  compensation  are  identical  in 
character  with  injuries  which  existed  prior  to  the  oc- 
currence of  the  accident  in  question.  The  third  is  the 
fact  that  the  claim  shows  evidence  of  fraud.  For,  if  a 
claim  is  insincere  or  based  upon  deceit,  it  is  not  only  un- 
worthy of  compensation;  but  it  often  presents  a  case 
in  which  there  is  a  duty  to  punish  the  offender.  Even 
after  it  has  been  decided  that  liability  exists  for  damages 
inflicted  upon  a  claimant,  we  are  still  confronted  with 
the  question  of  how  to  determine  the  money  value  of 
the  claim.  This  is  determined  by  numerous  facts.  We 
must  consider  how  seriously  he  has  been  injuried;  the 
facts  revealed  by  the  physical  examination;  the  per- 
manent or  other  character  of  his  injuries;  the  probable 
duration  of  his  disability;  whether  it  will  affect  him 
for  the  remainder  of  his  life  or  only  for  a  short  period ; 
whether  the  injury  may  lead  to  more  serious  conse- 
quences or  not ;  whether  the  accident  has  produced  new 


INTRODUCTION  7 

injuries  or  has  simply  aggravated  previous  in  juries,  and 
finally  whether  his  statement  of  his  injuries  coincides 
with  the  actual  facts.  These  are  all  that  may  be  termed 
primary  or  essential  facts.  They  form  a  part  of  the 
claimant's  demand,  but  the  amount  that  may  have  been 
found  due  by  a  consideration  of  the  facts  heretofore  ex- 
amined may  be  modified  by  the  inquiry  whether  or  not 
the  life  of  the  claimant  has  already  been  shortened  by 
various  diseased  conditions,  such  as  tuberculosis,  ner- 
vous disorders,  cancer,  inherited  tendencies,  hernia,  alco- 
holism, advanced  age  and  the  like.  On  the  other  hand, 
this  amount  may  be  modified  in  favor  of  the  claimant, 
that  is  to  say,  enhanced,  by  the  fact  that  his  vocation 
was  an  important  and  profitable  one ;  by  the  fact  that  he 
had  a  great  earning  power ;  that  he  was  able  to  maintain 
a  large  family,  and  in  the  case  of  female  claimants,  that 
the  injury  occurred  during  the  menopause  period  or 
even  during  pregnancy.  We  have  enimierated  up  to 
this  point  practically  all  of  the  factors  that  bear  upon 
the  actual  value  of  the  claim.  We  are  bound,  however, 
to  weigh  certain  factors  that  affect  more  or  less  the 
amount  that  a  defendant  is  willing  or  may  be  compelled 
to  pay  in  settlement.  Under  these  may  be  grouped  the 
attitude  assumed  by  the  attending  physician ;  the  repu- 
tation, character  and  ability  of  claimant's  counsel;  the 
damages  asked  by  the  claimant  or  his  counsel ;  the  de- 
fendant company's  general  policy  toward  the  public 
or  toward  injured  employees.  Under  this  last  head  we 
shall  discuss  particularly  a  new  phase  of  legal  develop- 
ment that  affects  the  value  of  a  claim  based  upon 
injuries  to  employees;  that  is  to  say,  the  employers'  lia- 
bility laws  of  the  various  states. 

The  facts  having  been  ascertained  and  all  of  those 
affecting  values  having  been  considered,  we  shall  com- 
ment upon  the  character  and  strength  of  the  evidence 


8  CLAIMS    FIXING    THEIR   VALUES 

by  which  these  facts  may  be  proved.  We  must  discuss 
herein  the  character  of  the  witnesses;  the  number  of 
witnesses ;  the  coherence  of  their  statements ;  the  Hkeli- 
hood  that  the  claimant's  case  might  go  to  the  jury;  the 
strength  of  the  claimant's  own  statement  of  the  oc- 
currence; the  strength  and  character  of  the  medical 
testimony.  We  must  likewise  consider  that  which  is 
the  ultimate  destiny  of  every  claim — the  possible  litiga- 
tion involving  the  determination  by  a  court  and  jury 
of  the  value  of  the  claim.  Finally,  we  shall  review  the 
subject  as  a  whole  in  order  to  indicate  if  possible,  the 
general  principles  that  should  control  .our  conduct  in 
determining  the  value  of  a  claim. 


CHAPTER  II 

MISHAP,    LIABILITY    OR    NON-LIABILITY 

Liability  not  the  result  of  every  accident. 

Cases  where  liability  is  certain. 

Fixing  responsibility. 

Negligence.     Tests  of  fault  or  negligence. 

Determination  of  liability. 

Duties  and  their  violation. 

From  what  has  the  injury  resulted  ? 

Definitions. 

When  does  a  person  owe  a  duty  to  another? 

Care  must  be  in  proportion  to  the  danger. 

Attractive  dangers. 

Lawful  acts  done  in  an  unlawful  manner. 

The  basis  of  actions  for  damages,  proximate  cause. 

Natural  and  probable  consequences. 

Determination  of  the  cause  of  a  mishap. 


8.     Liability  not  the  result  of  every  accident. 

The  happening  of  an  accident  does  not  mean  neces- 
sarily that  a  defendant  is  liable  to  pay  damages.  Nor 
is  it  always  certain  that  a  defendant  will  not  feel 
obliged  to  pay  damages,  although  the  law  does  not 
compel  him  to.  It  is  a  well  known  fact  that  almost 
two-thirds  of  all  of  the  modern  field  of  law  deals  with 
the  question  of  liability  for  harm  inflicted  in  accidents, 
in  railway  collisions,  in  contact  with  electric  wires,  by 
moving  vehicles,  by  boiler  explosions  and  a  thousand 
other  casualties  that  are  of  daily  occurrence.  The 
facts  in  connection  with  any  conceivable  injury  being 

9 


lO  CLAIMS    FIXING    THEIR    VALUES 

known,  the  task  of  those  entrusted  with  the  duty  of 
adjusting  the  claims  arising  from  it,  is  to  discover 
whether  the  facts  fall  within  the  general  principles  that 
constitute  a  claim  enforcible  by  legal  proceedings  or 
litigation.  It  is  not  to  be  supposed  that  one  must  be 
a  profound  student  of  the  law  in  order  to  determine 
whether  or  not  a  claimant  should  be  paid  money  for 
the  injuries  sustained.  There  are  certain  broad  general 
tests  that  enable  the  majority  of  adjusters  to  determine 
offhand  whether  or  not  a  claim  falls  within  the  class 
for  which  money  should  be  paid.  It  is  proposed  to 
review  here  briefly  and  without  technical  language, 
certain  of  these  broad  general  tests  that  may  be  of 
assistance  to  adjusters. 

9.     Cases  where  liability  is  certain. 

First  of  all,  let  us  assume  that  one  company  controls 
all  of  the  railway  traffic  within  a  given  city.  Some  of 
the  tracks  of  this  company  intersect  each  other  at  right 
angles.  That  is  to  say,  the  cars  upon  Tenth  Street 
must  move  across  the  tracks  on  which  the  Sixth 
Avenue  cars  are  running.  In  the  course  of  human 
events,  it  is  almost  certain  that  at  some  time  or  other, 
one  of  the  cars  on  Tenth  Street  is  going  to  collide  with 
a  car  on  Sixth  Avenue.  This  is  because  of  a  certain 
fatality,  in  all  activities  controlled  by  human  beings, 
that  makes  it  impossible  to  prevent  misadventure  when 
human  beings  are  the  agencies  in  control.  A  motor- 
man  may  be  on  his  guard  99  times  in  crossing  Sixth 
Avenue,  and  in  the  looth  instance,  for  anyone  of 
a  hundred  reasons,  his  vigilance  abates  and  the  Tenth 
Street  and  Sixth  Avenue  cars  run  into  each  other,  and 
several  passengers  are  injured.  In  a  case  of  this  sort, 
the  most  casual  observer  knows  that  there  is  almost  no 
escape  for  the  defendant  railway  company,  because  it 


MISHAP,    LIABILITY    OR    NON-LIABILITY  II 

has  now  become  a  principle  of  law  that  a  presumption 
of  negligence  arises  from  the  mere  happening  of  a  collis- 
ion between  railway  cars,  so  that  an  adjuster's  work 
narrows  itself  down  to  adjusting  the  claims  as  reason- 
ably as  possible,  consistent  with  fair  dealing,  humanity, 
and  his  duty  to  his  employer. 

10.  Fixing  responsibility. 

But  let  us  first  of  all  take  a  glance  at  our  position. 
An  accident  happens.  Someone  is  hurt,  and  we  are 
desired  to  fix  the  responsibility  and  adjust  the  amount, 
if  any,  that  should  be  paid  by  the  party  in  fault.  If 
a  passenger  upon  a  railway  car  is  hurt,  the  railway 
company  may  or  may  not  be  bound  to  compensate 
him  for  his  injuries.  What  is  it  that  determines 
whether  we  shall  pay  or  whether  we  shall  not  pay? 
It  is  the  existence  or  non-existence  of  negligence.  And 
the  test  of  this  is  whether  the  railway  company  has 
been  or  has  not  been  at  fault.  The  term  "at  fault" 
in  modern  law  really  means  "guilty  of  negligence." 
We  therefore  must  be  prepared  to  say  what  is  negligence. 

11.  Negligence.     Tests  of  fault  or  negligence. 

What  constitutes  being  at  fault  or  guilty  of  negli- 
gence? A  great  authority  has  said  that  negligence  is 
want  of  care  according  to  the  circumstances;  and 
want  of  care  means  want  of  that  diligence  or  vigilance 
which  any  common  sense  man  would  have  employed 
under  like  circumstances.  For  example,  if  a  conductor 
saw  a  passenger  about  to  alight  from  his  car  and  gave 
the  signal  to  the  motorman  to  start  the  car  before  the 
passenger  had  alighted,  a  jury  would  say  at  once  that 
the  conductor  was  not  using  as  much  common  sense 
or  vigilance  as  an  ordinary  man  would  have  used  under 
those  circumstances.     It  will  be  seen  at  once  that  this 


12  CLAIMS    FIXING    THEIR    VALUES 

definition  is  very  broad  and  in  many  cases  not  easy  to 
apply,  but  for  all  that,  it  is  a  reasonably  simple  matter 
for  an  adjuster  to  reach  an  approximation  of  what  an 
ordinary  man  would  have  done  under  any  given  cir- 
cumstances. It  is  easy  to  say  that  a  prudent  man 
would  not  drive  across  a  track  before  a  rapidly  moving 
car  when  it  was  only  five  feet  distant  from  him.  We 
might  say  the  same  when  it  was  lo  feet  distant;  when 
it  was  15  feet  or  even  25  feet  distant.  But  we  should 
be  compelled  to  admit,  if  a  vehicle  were  struck  while 
attempting  to  cross  fully  150  feet  in  front  of  a  moving 
car  that  the  car  would  have  to  move  with  lightning- 
like rapidity  to  strike  him,  which  might  give  rise  to 
two  different  answers  to  the  adjuster's  question  of 
liability  or  non-liability.  In  the  first  place,  if  mathe- 
matics would  demonstrate  that  no  car  moving  at  any 
conceivable  rate  of  speed  could  strike  the  vehicle  before 
it  crossed,  it  would  be  evident  that  the  driver's  story 
was  untrue,  in  which  event,  the  decision  of  the  adjuster 
would  be  non-liability.  On  the  other  hand,  if  careful 
calculations  disclosed  that  it  was  within  the  bounds  of 
possibility  that  the  car  could  travel  150  feet  and  strike 
the  vehicle,  which  would  in  a  manner  confirm  the 
claimant's  story,  the  adjuster  would  have  to  decide 
that  there  was  at  least  a  possibility  of  liability. 

12.     Determination  of  liability. 

So  that  we  reach  a  more  or  less  reasonable  test  in  a 
general  way  of  whether  or  not  the  railway  company 
or  other  defendant  could,  by  any  possibility,  be  charged 
with  liability  if  an  accident  happened.  The  first  test 
to  be  applied  is:  has  any  official  or  employee  of  the 
company  been  guilty  of  want  of  care  according  to  the 
circumstances?  In  the  case  of  common  carriers,  such 
as  railway  or  railroad  companies  there  is  a  very  broad 


MISHAP,    LIABILITY  OR    NON-LIABILITY  1 3 

general  duty  laid  upon  the  company  to  carry  its 
passengers  safely.  The  company,  for  a  payment  of 
money,  agrees  to  transport  the  passenger  from  one 
place  to  another  and  it  is  a  part  of  its  agreement  and 
undertaking  that  it  shall  do  it  safely.  In  other  words, 
that  in  the  course  of  the  journey,  it  will  do  nothing 
careless  on  its  own  part  to  produce  harm  to  the  passen- 
ger it  has  undertaken  to  carry.  The  carrier  is  not  an 
insurer  that  nothing  will  happen  to  injure  the  passenger ; 
it  is  not  bound  to  foresee,  for  example,  that  a  team 
will  suddenly  dart  out  from  a  side  street  and  injure  a 
score  of  passengers,  but  it  is  bound  to  take  reasonable 
precautions  against  dangers  that  it  could  avoid,  or 
that  could  be  avoided  by  the  exercise  of  care. 

13.     Duties  and  their  violation. 

Many  of  the  facts  are  so  broad  and  occur  so  frequently 
that  they  have  become  almost  as  necessary  a  part  of  the 
law  as  breathing  is  a  necessary  part  of  life.  Cities,  it  is 
well  known,  have  intersecting  streets,  with  cars  running 
on  both  sets  of  streets.  The  duty  of  a  railway  company, 
for  example,  under  those  circumstances  and  the  duty 
in  fact  of  all  drivers  or  conductors  of  vehicles,  is  fairly 
well  defined.  It  is  possible  for  one  in  charge  of  a 
vehicle  to  scent  danger  as  soon  as  he  reaches  the  house 
line  of  an  intersecting  street.  He  is  bound  to  look  in 
both  directions  in  search  of  possible  danger  before 
attempting  to  cross,  and  if  a  danger  suddenly  presents 
itself,  while  he  is  more  or  less  exempt  from  any  stringent 
duty,  yet  he  is  bound  to  use  ordinary  care.  Right 
angle  collisions  form  a  large  portion  of  accidents 
through  which  injuries  occur,  resulting  in  damage 
claims.  The  question  has  been  in  litigation  so  often 
that  the  duties  of  the  parties  involved  are  more  or 
less  understood  and  fairly  easy  to  ascertain. 


14  CLAIMS   FIXING   THEIR   VALUES 

14.     From  what  has  the  injury  resulted? 

The  first  broad  and  general  test  that  is  of  import- 
ance to  the  investigator  or  to  the  adjuster  where  the 
claimant  has  been  injured  in  a  collision  between  vehi- 
cles, by  the  action  of  machinery,  or  in  explosions  due 
to  the  failure  of  any  machinery  used  to  promote  human 
activity,  is  to  ascertain  whether  the  injury  is  a  direct 
result  of  a  defect  in  machinery  or  of  neglect  on  the  part 
of  those  who  have  had  charge  of  it.  If  the  claimant 
is  hurt  because  of  a  latent  defect  produced  in  the  manu- 
facture of  the  instrument  causing  the  injury,  as  for  ex- 
ample, a  boiler,  the  question  is  opened  up  at  once  as  to 
who  must  bear  the  loss.  In  normal  cases,  where  the 
car,  vehicle,  machinery  or  other  object  has  not  been  in 
use  for  an  extremely  long  period,  the  failure  of  any  part 
to  perform  its  functions,  may  or  may  not  be  an  indica- 
tion of  neglect  or  negligence  on  the  part  of  the  manu- 
facturer. Suppose  that  an  electric  car  on  its  first  trip 
after  delivery  from  the  shops  of  the  manufacturer, 
breaks  a  wheel  and  injures  several  passengers.  If  the 
wheel  breaks  because  of  a  defect  in  its  manufacture, 
which  could  have  been  detected  by  the  manufacturer 
but  not  very  readily  by  the  railway  company,  the 
responsibility  may  in  many  or  perhaps  in  the  majority 
of  cases  be  thrown  back  upon  the  manufacturer. 
Therefore,  the  first  broad  test  as  we  have  already  sug- 
gested that  the  adjuster  is  faced  with,  is  whether  or 
not  the  injury  has  been  produced  rather  by  a  failure 
of  apparatus  than  by  the  neglect  of  his  own  workmen, 
agents  or  employees.  If  he  decides  that  the  machinery 
has  been  faultily  constructed,  it  is  proper  that  he  should 
attempt  to  lay  the  responsibility  at  the  door  of  the 
proper  person,  namely,  the  manufacturer.  If,  on  the 
other  hand,   he  finds  that  the  apparatus  has  failed 


MISHAP,    LIABILITY    OR   NON-LIABILITY  1 5 

because  the  agents  or  employees  of  his  employer  have 
failed  to  perform  their  duty,  have  needlessly  subjected 
the  material  to  a  strain  for  which  it  was  never  intended, 
have  failed  to  foresee  an  avoidable  danger,  he  must 
conclude  that  the  situation  is  one  that  he  personally 
must  solve.  He  then  has  eliminated  the  possibility  of 
anyone  but  himself  or  his  employer  being  liable  for  the 
injuries  to  the  claimant.  His  general  proposition  then 
is,  what  is  the  precise  act  of  negligence  or  failure  of 
duty  that  produced  the  injury.  He  must  analyze  the 
facts  in  order  to  determine  what  is  the  immediate  and 
producing  cause  of  the  accident  or  occurrence  that 
resulted  in  the  injury.  If  the  accident  is  a  collision  he 
must  know  if  the  motorman,  for  example,  failed  to  take 
the  precautions  required  by  law.  If  he  did  not,  he  is 
faced  with  the  prospect  of  paying  a  damage  claim. 
The  precautions  that  the  driver  of  a  vehicle  is  bound 
legally  to  take,  are  of  a  nature  that  enable  any  common 
sense  individual  to  say  in  a  general  way  whether  or  not 
the  motorman  has  been  remiss.  These  principles  can 
only  be  indicated  in  a  very  general  way  here,  as  this  is 
not  a  treatise  upon  the  subject  known  as  "The  Law  of 
Negligence."  Accidents  may  be  due  to  carelessness  of 
the  motorman,  to  failure  to  see  on  the  track  what  he 
should  have  seen;  to  failure  to  warn  pedestrians  or 
other  vehicles  of  his  approach;  to  operating  a  car  at  a 
high  rate  of  speed  in  crowded  streets,  where  vehicles  or 
pedestrians  are  lawfully  present.  The  motorman  may 
see  no  passengers  at  an  intersecting  street,  and  without 
any  precautions  whatever,  attempt  to  go  across,  regard- 
less of  other  vehicles  approaching.  These  facts  are  sus- 
ceptible of  infinite  variations.  If  a  boiler  explodes  the 
fact  that  the  boiler  had  no  safety  valve,  that  its  shell 
was  known  to  be  weak,  and  that  it  was  nevertheless 
subjected  to  an  enormous  pressure,  indicates  fault  on 


1 6  CLAIMS    FIXING    THEIR    VALUES 

the  part  of  those  who  own  or  control  or  operate  the 
boiler.  In  the  case  of  a  railway  accident  the  disregard 
by  the  engineer  of  signals;  the  disobedience  of  speed 
regulations;  the  neglect  to  see  if  a  switch  is  open;  all 
indicate  in  a  broad  way  the  general  kinds  of  what  might 
almost  be  termed  wanton  negligence. 

16.     Definitions. 

Let  us  proceed  now  to  actual  doctrines  of  negligence, 
and  review  as  briefly  as  possible  the  principal  situations 
that  may  arise.  It  has  already  been  seen  that  the  law 
with  which  we  are  concerned  is  the  law  of  negligence. 
The  definition  that  has  been  given  that  negligence  is  the 
want  of  that  care  which  men  of  common  sense  and 
common  prudence  exercise  in  the  business  of  life  is  a 
practical  statement  to  which  all  the  courts  of  the  United 
States  would  subscribe.  This  definition  may  be  broken 
up  so  that  the  necessary  facts  that  enter  into  a  case  of 
negligence  may  be  determined.  For  example,  negli- 
gence which  entitles  a  claimant  to  bring  an  action  must 
present  three  elements.  They  are,  first,  that  a  duty  is 
owing  by  the  defendant  to  the  plaintiff.  Second,  that 
the  defendant  has  not  performed  that  duty.  Third, 
that  the  claimant  has  been  injured  by  the  non-perform- 
ance or  non-observance  of  the  duty  already  owed  by 
the  defendant. 

16.     When  does  a  person  owe  a  duty  to  another? 

These  duties  can  best  be  illustrated  by  reference 
to  concrete  cases.  Every  person  who  undertakes  a 
business  in  which  the  public  is  concerned  is  bound  to 
conduct  the  business  with  reasonable  care;  and  if  by 
reason  of  his  failure  to  use  such  care  another  person  is 
injured,  the  person  causing  the  injury  is  liable  to  make 
the  damage  good.     An  unusual  case  of  how  far  this 


MISHAP,    LIABILITY    OR   NON-LIABILITY  1 7 

liability  to  use  care  or  to  observe  a  duty  extends  is  a 
case  in  which  disease  was  contracted.  A  man  who  had 
two  children  afflicted  with  whooping  cough  took  them 
to  a  boarding  house  where  his  children  infected  other 
children  in  the  house,  including  a  child  of  the  claimant 
or  plaintiff.  It  w^as  decided  that  a  person  who  know- 
ingly takes  children  afflicted  with  a  contagious  disease 
to  a  place  where  others  might  contract  the  disease,  is 
guilty  of  negligence  and  liable  for  damages.  Negligence 
consists  not  only  of  doing  acts  that  one  should  not  do, 
but  also  of  omitting  to  do  acts  that  one  should  do. 
The  case  just  cited  is  in  a  sense  an  instance  of  an  omis- 
sion to  do  something.  The  claimant  should  have  dis- 
closed the  fact  that  his  children  were  diseased  so  that 
others  might  be  warned.  The  ordinary  care  that 
people  are  bound  to  use  may,  of  course,  be  modified  by 
circiunstances.  Ordinarily,  a  trespasser  is  a  person 
toward  whom  no  duty  is  owing  by  a  person  whom  he 
aggrieves,  but  if  the  latter  injures  the  trespasser  through 
absolute  disregard  of  consequences  implying  gross 
negligence,  even  a  trespasser  has  a  right  to  re- 
cover. For  example,  if  a  farmer  saw  a  tramp  lying 
asleep  in  his  barn,  he  would  certainly  be  liable  if  he 
urged  a  savage  dog  to  attack  the  sleeping  trespasser. 
It  may  be  mentioned  here  that  standards  of  care  are 
sometimes  prescribed  by  statutes.  It  is  generally 
held  that  if  a  statute  makes  failure  to  observe  its 
provisions,  negligence,  mere  violation  of  the  statute, 
gives  rise  to  an  action.  Little  need  be  said  of  wanton 
negligence  or  reckless  acts  or  conduct.  They  almost 
invariably  give  rise  to  an  action.  Wanton  or  willful 
negligence  is  generally  disclosed  when  the  person  doing 
the  act  is  absolutely  regardless  of  consequences.  Nor- 
mally, no  one  is  liable  for  the  acts  of  third  persons  over 
whom  he  has  no  control.     A  street  railway  company, 


l8  CLAIMS    FIXING    THEIR   VALUES 

for  example,  is  not  liable  for  injuries  caused  by  the 
acts  of  rioters. 

17.  Care  must  be  in  proportion  to  the  danger. 

Care  is  required  of  persons  according  to  the  danger 
arising  from  their  activities.  A  person  who  stores 
dynamite  on  his  premises  must  take  more  precautions 
than  a  person  who  stores  wheat.  The  same  rule 
holds  true  in  the  case  of  other  substances,  the  danger 
of  which  is  manifest.  Electricity  is  such  a  dangerous 
substance.  Gim-powder,  water  stored  in  a  reservoir, 
and  other  things  of  like  character,  increase  the  duty  of 
care  required  of  the  owner. 

18.  Attractive  dangers. 

A  particular  class  of  liability  arises  from  what  may  be 
considered  attractive  dangers.  This  may  best  be 
illustrated  by  reference  to  an  actual  case.  The  turn- 
table of  a  railroad  stood  in  a  public  place,  although  on 
its  own  premises,  in  such  a  position  as  to  attract  young 
children  to  play  upon  it.  Injury  resulted  to  the  chil- 
dren playing  on  the  turn-table  through  the  negligence 
of  the  railroad  employees.  It  was  decided  that  the 
railroad  company  was  liable  for  the  injuries  to  the 
children. 

19.  Lawful  acts  done  in  an  unlawful  manner. 

Liability  arises  also  from  conducting  a  perfectly  law- 
ful business  in  a  negligent  or  improper  manner.  Sup- 
pose that  a  person  who  manufactures  ladders  puts 
them  upon  the  market  for  use  constructed  in  so  negli- 
gent a  manner  that  it  would  obviously  endanger  the 
life  or  limb  of  anyone  using  them.  He  is  liable  to  any- 
one into  whose  hands  one  of  his  ladders  may  come  for 
use,  whether  he  had  any  contract  with  the  person  using 


MISHAP,    LIABILITY    OR    NON -LIABILITY  ig 

it  or  not.  The  general  principle  applicable  to  manufac- 
turers of  articles  is  that  the  manufacturer  is  liable  to  the 
purchaser  for  defective  materials  or  for  want  of  care 
and  skill  in  the  construction.  But  it  has  been  de- 
cided that  if  a  boiler  exploded  after  delivery  to  a 
purchaser,  because  of  defective  construction,  and  while 
in  use  by  him,  there  could  be  no  recovery  against  the 
manufacturer. 

20.     The  basis  of  actions  for  damages,  proximate  cause. 

It  is  impossible  to  consider  all  of  the  various  kinds  of 
negligence  that  may  give  rise  to  an  action,  but  it  is 
desired  to  illustrate  some  of  the  more  typical  instances 
upon  which  actions  for  damages  are  based.  A  person 
who  starts  a  fire  between  a  bam  and  a  house  less  than 
two  hundred  yards  distant,  in  the  vicinity  of  dry  brush, 
etc.,  and  leaves  the  fire  burning,  is  liable  for  the  destruc- 
tion of  any  buildings  or  timber  by  the  spread  of  the  fire. 
Certain  acts  produce  liability  no  matter  how  high  a 
degree  of  skill  and  care  has  been  used  in  doing  the  act. 
The  explosion  of  a  blast  in  a  thickly  settled  community 
w^hich  causes  death,  makes  the  person  setting  off  the 
blast  or  causing  it  to  be  set  off,  liable  for  damages  no 
matter  what  care  and  skill  he  used  in  exploding  it. 
Now  the  degree  of  care  required  in  all  normal  cases  is 
simply  the  care  generally  employed  in  similar  cases. 
Persons  using  machines  that  should  be  provided  with 
spark  arresters,  are  not  required  to  use  the  very  safest 
appliances,  but  only  reasonable  means  to  furnish  good 
machinery  consistent  w4th  the  greatest  safety  and 
practical  use.  Leaving  turn-tables  unguarded  or 
unlocked  may  at  times  give  rise  to  an  action  of  negli- 
gence. Contractors  who  fire  a  blast  without  giving 
warning  may  be  held  liable.  A  person  has  been  held 
guilty  of  negligence  for  placing  a  barrel  of  fish  brine  on 


20  CLAIMS    FIXING    THEIR   VALUES 

a  public  street  where  a  cow  drank  it.  The  neghgence 
for  which  a  defendant  can  be  held  liable  is  only  that 
negligence  which  is  the  proximate  cause  of  the  injury 
to  the  claimant.  There  is  an  old  legal  proverb  to  the 
effect  "causa  proxima  non  remota  spectatur,"  that  is 
to  say  that  proximate  causes  and  not  remote  ones  are 
the  basis  of  liability.  The  meaning  of  this  is  that  the 
injury  to  a  claimant  must  be  the  natural  and  probable 
consequence  of  the  negligence  or  wrongful  act  or  one 
which  ought  to  have  been  foreseen  in  the  light  of  the 
attending  circumstances.  Natural  and  probable  con- 
sequences of  a  wrongful  act  or  omission  are  not  neces- 
sarily chargeable  to  the  misfeasance  or  nonfeasance 
when  there  is  a  sufficient  or  independent  cause  operat- 
ing between  the  wrong  and  the  injury;  but  when  there 
is  no  intermediate  efficient  cause,  the  original  wrong 
must  be  considered  as  reaching  to  the  effect,  and  proxi- 
mate to  it.  This  is  as  clear  and  lucid  a  statement  of  the 
fundamental  principle  of  negligence  as  could  be  desired. 

21.     Natural  and  probable  consequences. 

A  defendant  naturally  is  liable  only  for  the  natural 
and  probable  consequences  of  his  act.  For  example, 
if  anyone  negligently  runs  a  wagon  over  a  fire  hose  so 
that  the  hose  is  severed  and  a  building  destroyed  by  fire 
because  the  hose  could  not  be  used,  the  cutting  of  the 
hose  is  a  natural  and  probable  consequence  of  being 
run  over  by  the  wagon,  and  the  burning  of  the  building 
is  the  natural  and  probable  consequence  of  the  hose  be- 
ing out  of  condition  to  extinguish  it.  The  defendant  is 
bound  to  forsee  consequences  that  anyone  would  rea- 
sonably be  expected  to  foresee.  Several  persons  may 
act  together  so  as  to  produce  an  injury  and  if  the  injury 
is  the  joint  result  of  the  action  of  two  or  more  persons, 
they  may  both  be  held  jointly  liable.     It  is  necessary 


MISHAP,    LIABILITY    OR   NON-LIABILITY  21 

in  this  connection  to  remember  this  fact,  that  in  many- 
jurisdictions  a  release  of  several  persons  who  are  jointly- 
liable  is  a  release  of  all.  The  reason  for  this  is  a  prin- 
ciple of  law  to  the  effect  that  there  is  no  contribution 
among  joint  tort-feasors  or  wrong  doers.  So  that  it  is 
wise  always  to  know  that  releases,  if  any,  have  been 
executed  to  other  defendants  than  the  one  whom  the 
adjuster  represents.  If  an  injury  occurs  because  of  the 
act  or  omission  of  some  third  person  intervening  be- 
tween the  negligence  of  the  defendant  and  the  injury, 
the  defendant  cannot  be  held  liable  for  the  act  of  the 
third  person.  In  any  event,  except  in  the  case  of  com- 
mon carriers  of  property,  mere  unavoidable  accidents 
for  which  no  one  is  to  blame  could  give  rise  to  no  lia- 
bility. In  the  case  of  common  carriers  of  property  such 
as  railroads  carrying  freight,  there  is  a  principle  of  law 
to  the  effect  that  the  common  carrier  is  liable  for  all 
losses  no  matter  how  occasioned,  except  those  due  to 
an  act  of  God  or  of  the  public  enemy.  This  must  be 
carefully  borne  in  mind  where  a  claim  presented  is  for 
property  damaged,  against  a  carrier  who  has  under- 
taken to  transport  the  property. 

22.     Determination  of  the  cause  of  a  mishap. 

It  must  be  evident  that  anyone  who  presumes  to  pass 
judgment  upon  the  value  of  a  claim,  must  be  acquainted 
in  some  general  way  with  the  laws  that  determine 
those  values,  and  that  law  is  the  law  of  negligence.  A 
part  of  this  law  is  learned  by  lawyers  and  laymen  alike, 
by  sad  experience.  The  greater  part  of  it,  however,  is 
accessible  through  the  work  of  digesters  in  any  number 
of  compilations,  digests  and  treatises,  besides  which 
the  annual  digests  contain  under  the  head  of  negli- 
gence, practically  all  of  the  decided  cases  on  that  sub- 
ject.    We  may  leave  the  present  discussion  with  this. 


22  CLAIMS    FIXING    THEIR   VALUES 

thought,  that  the  first  duty  of  anyone  attempting  to 
adjust  a  claim  is  to  analyze  the  facts  until  he  can  safely 
say  "This  fact  is  the  exclusive  one  which  produced  the 
accident  in  which  the  injuries  were  sustained."  He 
must  say  the  motorman  did  not  ring  his  bell;  the 
engineer  subjected  his  boiler  to  too  great  a  pressure;  the 
driver  rushed  recklessly  out  of  a  side  street ;  the  electric 
wires  were  improperly  insulated ;  the  street  was  improp- 
erly paved;  or  something  of  like  nature.  He  then  is 
able  to  say  that  one  or  the  other  of  these  acts  actually 
and  of  itself  produced  the  accident.  Having  decided 
this,  he  must  say  according  to  the  law  of  negligence, 
"did  the  motorman  or  the  engineer  or  the  driver  use 
such  care  as  any  common  sense  man  would  have  used 
tinder  those  circumstances?"  When  he  has  answered 
this  question,  he  is  reasonably  sure  to  be  in  accord  with 
legal  thought  upon  the  subject ;  in  other  words,  in  accord 
with  the  cases. 


CHAPTER   III 

FACTS    IN    AVOIDANCE    OF    LIABILITY 

23.  Qualification  of  liability. 

24.  Contributory  negligence. 

25.  Persons  under  disability. 

26.  Imputation  of  negligence. 

27.  Injuries  due  to  acts  of  third  persons. 

28.  Children  of  tender  years. 

29.  Injuries  to  employees.     Liability  or  non-liability. 

30.  Employer's  liability. 

3 1 .  The  basis  of  a  claim  for  personal  injury. 

32.  Former  condition  of  claimant  as  a  key  to  present  condition. 

23.     Qualification  of  liability. 

We  must  not  assume,  however,  that  because  an  acci- 
dent has  happened  and  is  due  to  the  negHgence  of  an 
employee,  that  the  employer  is  necessarily  liable  for  the 
consequences  of  the  accident.  The  principle  qualifica- 
tion of  the  liability  of  the  person  causing  the  accident 
is  the  fact  that  the  claimant  has  himself  helped  to  pro- 
duce his  injuries.  This  is  known  as  contributory  negli- 
gence, and  is  the  defendant's  main-stay  in  an  attempt 
to  avoid  liability  for  injury  inflicted.  The  theory  is 
this:  If  a  person  is  injured  and  himself  and  another 
have  contributed  some  portion  of  the  injury,  the  law 
never  goes  further  in  order  to  attempt  to  apportion  the 
amount  contributed  by  each.  If  the  claimant  has 
helped  in  any  way  to  injure  himself  the  law  gives  him 
no  redress  against  the  other  party  to  his  injuries.  A 
few  illustrations  will  make  clear  the  manner  in  which 
a  claimant  may  forfeit  his  right  to  ask  anything  in 
damages  from  the  person  who  has  injured  him.  Sup- 
pose that  a  car  fails  to  stop  at  a  given  street,  althoiigh 

23 


24  CLAIMS   FIXING   THEIR   VALUES 

the  claimant  has  requested  it.  The  claimant,  notwith- 
standing the  fact  that  the  car  is  in  motion,  attempts  to 
alight,  and  is  injtired.  He  may  be  taken  in  this  case  to 
have  foreseen  and  to  have  taken  chances  of  his  being 
injured  by  a  fall.  The  fact  is  that  anyone  who  attempts 
to  get  on  or  off  a  moving  vehicle  is  unable  to  collect 
damages  from  anyone  if  he  is  injured  in  the  attempt. 
This  is  a  characteristic  instance  of  contributory  negli- 
gence. Hence  a  second  analysis  is  necessary  after  it  has 
been  determined  that  the  defendant  company  or  indi- 
vidual has  been  guilty  of  negligence.  The  second 
analysis  is  to  discover  how  far  the  claimant  himself  may 
have  contributed  in  producing  his  injuries.  Suppose 
that  it  is  demonstrated  that  a  car  is  running  at  the  rate 
of  40  miles  an  hour  on  a  crowded  street.  This  of  itself 
establishes  the  negligence  of  the  railway  company,  but 
it  is  of  no  value  whatever  to  a  claimant  who  is  injured 
by  a  jump  from  a  car  going  at  such  a  rate  of  speed.  The 
question  of  contributory  negligence  may  be  solved  by 
tests  as  simple  as  have  been  applied  in  the  case  of 
negligence.  The  question  to  be  asked  by  the  adjuster 
is,  "Has  the  claimant  used  that  care  which  the  circum- 
stances demanded  of  him?"  If  he  has  not,  he  has  no 
claim.  There  are  many  principles  more  or  less  based 
upon  the  doctrine  of  contributory  negligence.  Among 
these  are  workmen's  assumption  of  the  risks  of  their 
calling.  This  means  in  plain  English  that  a  workman 
who  goes  into  a  dangerous  calling  or  occupation,  as- 
sumes himself  and  forsees  according  to  the  law,  the 
dangers  to  which  he  may  be  subjected.  A  steeple- jack 
is  emplo3^ed  in  the  most  dangerous  of  callings.  If  for 
any  ordinary  reason  aside  from  defective  materials,  he  is 
injured,  he  has  no  recouise  against  his  employer,  and 
this  is  true  also  of  injuries  to  workmen  employed  about 
dangerous  machiner^^  such  as  circular  saws  and  the  like. 


FACTS   IN  AVOIDANCE    OF   LIABILITY  25 

The  literature  upon  this  subject  is  overwhelming,  but 
the  general  principles  are  fairly  easy  to  discover.  The 
value  of  a  claim,  therefore,  is  to  be  determined  in  accord- 
ance first  of  all  with  the  principles  of  the  law  of  negli- 
gence and  secondly  the  principles  of  the  law  of  contri- 
butory negligence. 

24.     Contributory  negligence. 

The  first  and  most  important  defense  to  an  action 
when  negligence  on  the  part  of  the  defendant  has  been 
proved,  is  as  w^e  have  seen,  that  the  claimant  himself 
contributed  to  his  own  injuries.  The  negligence,  how- 
ever, that  will  defeat  the  claimant's  right  to  an  action 
must  be  such  that  it  must  have  contributed  essentially 
to  his  injury.  The  tests  of  contributory  negligence  are 
the  same  as  those  for  negligence.  The  claimant's  right 
to  recover  is  not  generally  defeated  unless  he  or  she  was 
at  fault.  The  contributing  act,  in  other  words,  must  be 
a  negligent  act.  The  general  principle  is  that  if  both 
parties  are  gmlty  of  negligence,  the  plaintiff  or  claimant 
has  no  recovery.  The  law  does  not  stop  to  measure  the 
degree  of  negligence  on  the  part  of  the  plaintiff.  As  an 
exception  to  this,  however,  the  claimant's  right  is  never 
defeated  where  he  is  injured  by  intentional  wrong-do- 
ing on  the  part  of  the  defendant.  If  the  defendant  has 
been  guilty  of  any  wanton,  reckless  or  intentional  act, 
the  element  of  contributory  negligence  is  not  to  be  con- 
sidered. In  general,  persons  who  put  themselves  in 
positions  of  known  danger  are  precluded  from  recovery 
if  they  are  injured.  An  example  of  this  is  the  well- 
known  rule  that  it  is  negligence  to  stand  on  the  platform 
of  an  electric  car  when  there  is  room  to  step  inside.  A 
remarkable  instance  of  this  principle  is  a  case  where  a 
person  for  whose  death  suit  was  brought,  was  killed 
while  diving  from  a  trapeze  on  the  beach  of  the  defen- 


26  CLAIMS   FIXING   THEIR   VALUES 

dant.  The  trapeze  was  about  15  ft.  high  and  the  water 
about  31/2  ft.  deep.  It  was  decided  in  this  case  that 
the  deceased  was  guilty  of  negHgence  in  voluntarily 
assuming  a  position  of  danger.  A  woman  in  ascending 
the  steps  of  a  university  was  thrown  and  injured  be- 
cause of  her  dress  catching  on  pieces  of  projecting  slate. 
She  was  not  allowed  to  recover  on  the  ground  that  the 
pieces  of  slate  being  visible,  she  should  have  lifted  her 
skirts  in  order  to  avoid  strildng  them.  The  claimant, 
however,  is  entitled  to  assume  that  the  defendant  will 
perform  his  duty.  The  care  which  a  defendant  is  bound 
to  use  is  such  as  the  circumstances  require  of  him.  If 
the  danger  is  great,  the  care  required  is  great,  it  being 
assumed  that  a  reasonable  and  prudent  man  will  be 
careful  in  proportion  to  the  danger  with  which  he  is 
confronted.  Neither  party  can  be  held  to  the  highest 
possible  degree  of  care,  nor  can  a  person  who  is  con- 
fronted with  a  sudden  and  unforeseen  danger  be  expected 
to  use  his  wits  as  promptly  and  efficiently  as  he  would 
under  ordinary  circumstances.  It  is  not  contributory 
negligence  for  a  person  doing  his  duty  to  perform  an 
act  that  may  imperil  his  life  or  personal  safety.  The 
particular  acts  that  generally  fall  under  a  classification 
such  as  this  are  dangers  that  persons  incur  for  the  pur- 
pose of  saving  life  or  property.  Thus  it  is  not  contrib- 
utory negligence  to  enter  a  burning  building  for  the 
purpose  of  saving  the  life  of  a  fellow  being.  Nor  is  it 
contributory  negligence  to  walk  upon  a  railroad  trestle 
for  the  purpose  of  helping  another  to  avoid  danger.  The 
saving  of  property  comes  under  the  same  rule  to  a  cer- 
tain extent.  In  general,  one  who  measures  his  own  life 
against  valuable  property  will  not  be  permitted  to 
recover.  A  person  who  is  a  trespasser,  however,  is 
permitted  to  recover  only  where  the  negligence  is 
wanton,  willful  or  intentional. 


FACTS   IN  AVOIDANCE    OF    LIABILITY  27 

25.  Persons  under  disability. 

In  the  case  of  persons  under  legal  disability  such  as 
children  or  intoxicated  persons,  the  degree  of  care 
required  is  proportionate  to  the  duty  to  exercise  it. 
But  the  persons  excluded  from  contributory  negligence 
are  generally  persons  confronted  by  sudden  dangers, 
lunatics,  drunkards,  and  children  of  tender  years. 

26.  Imputation  of  negligence. 

The  most  that  can  be  accomplished  in  a  work  such  as 
this,  is  the  indication  of  broad  general  lines  of  liability 
and  the  suggestion  of  tests  that  may  be  applied  in  all 
cases.  Let  us  consider  for  a  moment  a  few  particular 
cases  of  negligence  that  are  of  frequent  occurrence,  and 
of  which  a  certain  knowledge  is  essential.  One  of  these 
is  the  doctrine  of  imputation  of  negligence.  The  mean- 
ing of  this  phrase  is  simply  that  where  one  individual. 
Smith  for  instance,  has  been  guilty  of  negligence  or  of 
contributory  negligence,  that  has  resulted  in  injury  to 
Brown  who  was  with  him,  riding  in  a  wagon,  for  ex- 
ample, the  negligence  or  contributory  negligence  of 
Smith  cannot  be  made  the  negligence  of  Brown  if  Brown 
is  hurt  by  someone  else  and  seeks  to  recover.  "The 
negligence  of  the  driver  of  a  private  conveyance  can- 
not be  imputed  to  a  person  riding  in  the  vehicle  who 
was  not  the  employer  of  the  driver. ' '  This  may  be  illus- 
trated by  reciting  the  facts  of  the  accident  from  which 
the  paragraph  just  quoted  has  been  taken.  A  telephone 
company  planted  its  poles  so  near  to  the  traveled  por- 
tions of  a  road,  that  Little,  who  was  seated  on  the  side 
of  a  hay  wagon  with  his  feet  extended  about  a  foot 
from  the  wagon,  was  injured  by  contact  with  the  poles 
of  the  telegraph  company.  The  result  of  the  case  was 
that  the  Central  District  and  Printing  Telegraph  was 
obliged  to  pay  damages  to  Little  for  the  injuries  sus- 


28  CLAIMS   FIXING   THEIR   VALUES 

tained.  There  was  a  question  in  the  case  whether  or 
not  the  driver  of  the  hay  wagon  was  himself  guilty  of 
any  negligence,  and  there  is  some  possibility  that  the 
driver  was  not  as  careful  as  he  might  have  been.  But 
the  fact  that  the  driver  was  negligent,  did  not  of  itself 
constitute  negligence  on  the  part  of  the  person  who  was 
with  him  in  the  wagon  and  who  was  hurt.  The  only 
question  in  such  a  case  is  whether  or  not  the  person 
hurt  was  individually  guilty  of  some  act  of  negligence. 
For  example,  whether  his  conduct  was  reckless,  or  to 
use  the  legal  principle,  whether  he  was  exercising  that 
care  which  any  ordinary  man  of  common  sense  would 
use  under  the  circinnstances.  Had  the  passenger  been 
the  employer  of  the  driver,  the  case  would  have  been 
different,  as  he  was  responsible  for  the  acts  of  his  ser- 
vant. One  principle  involved  in  the  case  under  discus- 
sion was  that  a  jury  must  determine  whether  or  not  a 
person  riding  in  a  wagon  on  a  public  highway  is  guilty 
of  negligence  in  permitting  his  feet  or  arms  to  extend 
beyond  the  side  of  the  vehicle.  This  is  a  case  that 
occurs  with  some  frequency,  and  the  principle  involved 
should  at  least  be  known  to  the  claim  agent. 

27.     Injuries  due  to  acts  of  third  persons. 

Again,  injiu-ies  to  the  claimant  may  not  be  the  result 
of  the  defendant's  acts  at  all,  but  they  may  result  from 
the  act  of  some  stranger.  Suppose  for  example,  that 
the  line-man  of  a  telephone  company  is  ascending  a 
ladder,  to  reach  the  top  of  a  pole,  and  that  when  he  is 
half  way  up  the  ladder,  some  jocular  individual  pulls 
the  ladder  from  tmder  him.  It  is  clear  that  if  he  is 
injured  by  the  fall,  the  telephone  company  is  not 
responsible  for  his  injuries.  The  third  person  has  inter- 
vened and  caused  damage  to  him  and  therefore,  what- 
ever claim  he  has  must  be  presented  to  the  person  who 


FACTS    IN  AVOIDANCE    OF    LIABILITY  29 

pulled  the  ladder  from  under  him.  Suppose  that  a 
passenger  is  about  to  alight  from  a  car  and  that  before 
he  has  alighted,  another  passenger  quickly  gives  the 
signal  to  the  motorman  to  start  the  car,  whereby  the 
passenger  who  is  alighting  is  severely  injured.  It 
would  be  an  extreme  case  that  would  make  the  car 
company  liable  under  such  circumstances,  and  such 
facts  form  an  important  part  of  the  investigator's 
statement.  It  is  true  that  conductors  sometimes  dele- 
gate the  duty  of  giving  the  signal  to  the  motorman  to 
passengers  on  the  rear  platform,  and  such  practices  are 
likely  to  lead  to  liability  on  the  part  of  the  railway 
company.  But  normally  where  a  person  causing  an 
accident  is  not  an  employee  of  the  one  against  whom 
the  claim  is  presented,  he  is  the  sole  one  responsible 
for  the  injuries  to  the  claimant. 

28.     Children  of  tender  years. 

Some  mention  has  been  made  of  cases  of  negligence 
in  children  of  tender  years.  Such  matters  arise 
generally  where  children  at  play  creep  through  openings 
in  fences,  or  run  on  railroad  turn-tables,  or  pick  up 
charged  wires,  and  matters  of  the  like.  It  is  almost 
impossible  to  give  a  test  for  cases  presenting  such  a 
variety  of  facts.  If  a  child  is  of  very  tender  years, 
aged  three,  four,  or  five,  the  parents  are  usually  held 
guilty  of  contributory  negligence  in  permitting  so 
young  a  child  to  run  tmguaided  through  the  streets. 
So  that  cases  of  this  nature,  where  for  example,  a  child 
three  years  old  has  suddenly  darted  before  a  moving 
electric  car,  generally  mean  that  the  claim  cannot  be 
made  the  basis  of  a  suit.  An  interesting  example  of 
this  was  a  case  in  which  a  power  company  had  a  picket 
fence  about  its  plant,  and  was  in  the  habit  of  dumping 
hot  ashes  as  they  were  removed  from  the  furnace  upon 


3©  CLAIMS    FIXING    THEIR   VALUES 

the  ground  enclosed.  A  child  less  than  four  years  old 
crawled  through  a  small  opening  in  the  picket  fence  and 
sat  in  the  hot  ashes.  The  result  was  that  the  poor  little 
tot  was  severely  burned,  and  a  consequent  lawsuit,  in 
which  the  propositions  were  settled  that  the  power 
company  had  been  guilty  of  no  negligence  since  it  had 
enclosed  its  grounds  and  had  dumped  its  ashes  within 
the  enclosure,  and  also  that  the  parents  of  so  young  a 
child  were  guilty  of  negligence  to  permit  it  to  run  where 
such  dangers  might  be  incurred. 

29.     Injuries  to  employees.     Liability  or  non -liability. 

There  are  some  special  features  of  the  law  to  be  ap- 
plied when  the  claimant  is  an  employee.  It  has  long 
been  recognized  as  a  legal  principle  that  when  one 
employee  is  injured  by  the  act  of  a  fellow  workman, 
he  has  no  claim  for  damages  against  his  employer. 
The  situations  that  arise  under  such  doctrines  are 
extremely  complicated  and  only  the  most  general 
tests  can  be  given  here.  Let  us  consider  a  few  typical 
cases.  Suppose  that  a  workman  is  employed  at  a 
weaving  or  spinning  machine  and  that  there  is  a  device 
attached  to  the  machine  called  a  blower  for  getting  rid 
of  the  waste.  Suppose  that  the  blower  clogs  up  and  the 
workman  without  stopping  his  machine  undertakes  to 
place  his  hand  in  the  blower  and  clear  out  the  waste. 
Except  in  very  rare  instances,  the  employee  cannot 
hold  his  employer  liable  for  the  injuries  received.  But 
this  accident  may  take  place  in  other  ways.  If  the 
blower  in  which  he  is  injured  is  one  of  an  antiquated 
type  so  that  the  machinery  is  far  below  the  ordinary 
modem  standard  of  efficiency,  there  is  some  possibility 
that  the  employer  may  be  liable.  This  is  particularly 
true  if  the  weaver  or  spinner  has  been  instructed  by  his 
master  or  by  a  superintendent  to  clear  the  blower  in 


FACTS   IN  AVOIDANCE   OF   LIABILITY  3 1 

that  particular  way.  This  brings  us  to  another  realm 
of  debated  and  important  questions.  A  person  who 
represents  the  employer  and  gives  orders  for  him  to  the 
employees  is  generally  termed  in  legal  parlance  a  vice- 
principal.  The  vice-principal  stands  in  the  place  of  the 
employer  and  any  injuries  caused  by  obeying  orders 
given  by  him  may  be  charged  against  the  employer. 
There  are  so  many  phases  of  this  doctrine,  however, 
that  accurate  knowledge  of  the  principles  of  the  law 
of  master  and  servant  are  almost  indispensable  to 
successfiil  work  on  the  part  of  an  adjuster  if  any  number 
of  master  and  servant  claims  falls  to  his  lot. 

30.     Employer's  liability. 

The  socialistic  tendency  of  modern  legislation  is 
responsible  for  the  passage  of  many  statutes  that  have 
increased  the  burden  on  the  employer.  vSome  statutes 
make  the  employer  liable  for  injuries  received  in  the 
course  of  the  employment,  although  they  were  produced 
by  a  fellow  servant.  This  legislation  has  been  attacked 
and  is  now  before  the  courts  for  a  test  of  its  constitu- 
tionality. It  will  be  seen  that  the  analysis  of  a  case 
presenting  injuries  to  an  employee  is  somewhat  more 
complicated  than  the  ordinary  case  of  negligence. 
The  general  order  of  investigation  should  be.  i.  Did 
the  claimant  sustain  any  injuries?  2.  Was  the  accident 
that  caused  the  injury  due  to  negligence  for  which 
the  employer  may  be  charged  ? 

a.  This  is  modified  by  inquiring  if  a  fellow  servant 
produced  the  injuries. 

b.  It  is  further  modified  by  ascertaining  if  the  injury 
may  be  due  to  the  claimant's  assiunption  of  the  risk 
of  a  dangerous  calling. 

c.  The  principles  of  contributory  negligence  must  be 
applied. 


32  CLAIMS   FIXING   THEIR   VALUES 

31.  The  basis  of  a  claim  for  personal  injury. 

The  basis  of  every  claim  is  loss  to  the  claimant.  It 
the  accident  has  occasioned  the  claimant  no  loss  or 
inconvenience,  however  grevious  the  negligence  of  the 
defendant,  he  is  entitled  to  no  compensation.  Suppose 
that  a  collision  occurred  and  a  claimant  asks  compensa- 
tion for  a  hernia.  If  it  can  be  proved  that' he  had  the 
hernia  before  the  accident  and  that  it  has  been  in  no 
wise  aggravated  by  the  accident,  he  has  suffered  no 
pain  or  loss.  His  claim  has  no  value.  This  inqiiiry 
is  one  of  the  most  important  and  the  most  fruitful  that 
the  adjuster  can  pursue.  Although  an  accident  has 
happened  and  the  defendant  has  been  negligent,  he 
cannot  be  called  upon  to  pay  for  injuries  that  were 
in  existence  before  the  accident  happened.  We  may 
leave  this  subject  then,  although  we  have  treated  it  but 
briefly,  with  the  statement  of  this  general  principle. 
The  condition  of  the  claimant  to  form  the  basis  of  a 
claim  must  have  been  changed  by  the  accident  or  oc- 
currence due  to  negligence.  If  it  has  been  changed  for 
the  worse,  he  is  entitled  to  compensation.  The  funda- 
mental test  invariably  applied  is :  What  sum  of  money 
will  place  the  claimant  in  as  good  position  as  he  would 
have  been  in  had  no  accident  occurred?  If  he  has  lost 
a  limb  or  member  of  his  body,  literally  placing  him  in 
the  same  position  is  impossible.  It  becomes  a  question 
then  of  trying  to  estimate  in  cash  the  value  of  a  broken 
or  lost  member  and  the  consequent  pain  and  suffering. 

32.  Former  condition  of  claimant  as  a  key  to  present  condition. 

But  if  the  case  presents  a  possibility  that  the  former 
condition  of  the  claimant  would  explain  his  present 
condition,  even  if  no  accident  had  occurred,  there  is  a 
strong  probability  that  the  injuries  are  not  due  to  the 
negligence  of  the  defendant,  and  the  amount  payable 


FACTS    IN  AVOIDANCE    OF   LIABILITY  ^^ 

in  damages  falls  to  a  minimum  determined,  by  the 
circumstances — the  cost  of  litigation — the  possibility 
of  the  claimant's  success,  and  the  like.  The  actual 
measurement  of  these  factors  will  be  discussed  luider  a 
subsequent  topic  dealing  with  specific  conditions  and 
diseases. 


33 
34 
35 
36 
37 
38 

39 
4o 

41 
42 

43 
33 


CHAPTER  IV 

NATURE  AND  EXTENT  OF  INJURIES  SUSTAINED 

Physical  examination  of  claimant. 

Its  part  in  determining  the  value  of  the  claim. 

Permanent  injuries. 

Previous  injuries. 

The  claimant's  statement* 

Application  of  principles. 

Examples. 

Analysis  of  Case  I. 

Examples. 

Exaggerated  statements. 

Summary. 


Physical  examination  of  claimant. 

We  have  already  dwelt  upon  the  fact  that  it  is  not 
enough  to  know  that  the  claimant  was  hurt,  and  that 
his  hurt  was  caused  by  the  defendant's  negligence. 
They  are  merely  the  preliminary  inquiries.  The  first  step 
in  fixing  a  sum  of  money  as  the  value  of  the  claimant's 
loss  or  injuries,  is  to  determine  how  much  he  has  been 
injured.  Where  the  injiuies  are  to  some  part  of  his 
body,  we  prove  these  facts  by  means  of  a  physical 
examination.  This  examination  is  the  work  of  the 
physician,  and  the  investigator  must  depend  upon  the 
physician  for  a  full  and  complete  statement  of  what  is 
disclosed  by  aH  examination  of  the  claimant's  person. 
This  examination  is  not  always  so  fruitful  as  might  be 
supposed,  particularly  if  the  injuries  for  which  the 
claimant  has  asked  damages  are  of  a  subtle  nature. 
It  is  not  always  a  simple  matter  for  the  most  expert  of 
physicians  to  say  that  the  claimant  has  or  has  not  a 
genuine  case  of  paralysis  of  the  throat  that  has  rendered 

34 


NATURE  AND  EXTENT  OF  INJURIES  SUSTAINED    35 

him  unable  to  talk.  This  sort  of  injury  has  at  times 
been  counterfeited  with  entire  success.  It  must  be 
understood  that  this  is  impossible  in  the  case  of  a 
broken  leg  or  a  broken  arm,  painful  bruises,  dislocations 
and  other  matters  of  the  like.  What  must  be  estab- 
lished beyond  all  perad venture  by  the  physician's 
physical  examination  is  that  the  claimant  was  or  was 
not  injured  in  the  accident.  It  is  necessary  to  know 
that  a  change  in  his  condition  has  taken  place  as  the 
immediate  consequence  of  the  accident.  If  he  has  two 
broken  ribs  that  have  progressed  at  least  six  weeks 
toward  recovery  and  the  accident  occurred  two  days 
before,  it  is  obvious  that  the  broken  ribs  are  not  the 
result  of  the  accident.  In  any  event,  the  first  great  and 
important  step  in  fixing  values,  is  the  physical  exami- 
nation. Upon  the  results  of  that  examination  depends 
much  of  the  subsequent  handling  of  the  case. 

34.     Its  part  in  determining  the  value  of  the  claim. 

The  physical  examination  bears  the  same  relation  to 
determining  the  value  of  the  claim  as  the  examination 
of  the  facts  of  the  accident.  The  facts  of  the  accident 
fix  the  legal  status  of  the  defendant  or  in  simpler  lan- 
guage they  enable  us  to  decide  that  a  claim  has  arisen 
or  that  the  claimant  has  a  valid  right  to  compensation. 
The  physical  examination  furnishes  us  with  the  second 
important  series  of  facts  that  help  to  determine  the 
value  of  the  claim.  The  first  and  most  interesting 
inquiry  that  must  be  undertaken  as  a  result  of  the 
physical  examination,  is  whether  the  injuries  are 
permanent  or  whether  they  will  be  cured  in  a  short  or 
long  interval.  If  the  claim  is  based  upon  injuries  that 
are  undoubtedly  permanent,  the  claim  at  once  presents 
itself  to  us  as  being  in  the  highest  degree  serious.  No 
one  can  say  what  compensation  is  adequate  for  the  loss 


36  '    CLAIMS   FIXING   THEIR   VALUES 

of  an  eye,  the  loss  of  an  arm,  the  loss  of  a  leg,  or  infec- 
tion with  a  chronic  disease.  There  is  a  further  element 
to  be  considered  in  connection  with  the  permanence  of 
the  injuries,  and  that  is  what  degree  of  constant  pain 
will  accompany  the  continuance  of  the  condition.  If  a 
man  has  been  deprived  of  a  leg,  the  pain  after  the  cure 
has  been  effected,  is  largely  mental.  If  his  living 
depends  upon  the  rapidity  with  which  he  can  move 
about,  then  a  lameness  due  to  the  loss  of  a  leg  which 
prevents  him  from  moving  about  in  that  way,  becomes 
a  large  factor  in  estimating  the  value  of  the  claimant's 
demands.  On  the  other  hand,  if  the  injuries  are  not  of 
a  permanent  character;  if  they  are  represented  by 
bruises  which  will  disappear  in  a  more  or  less  short 
time ;  if  they  consist  of  cuts  or  scratches ;  temporary  loss 
of  speech;  a  broken  bone;  dislocation  or  a  fracture;  a 
reasonable  approximation  of  the  value  of  the  claim 
based  on  such  injuries  may  be  reached. 

Suppose  that  an  arm  has  been  fractured.  The  claim- 
ant is  a  type  setter  and  earns  $20.00  per  week;  he  is 
obliged  to  cease  work  and  remain  home  for  ten  weeks. 
His  loss  of  earnings  during  that  time  is  $200.00;  the 
expenses  of  medical  attendance  are  $75.00;  he  must 
expend  for  medicine  and  other  miscellaneous  necessaries 
a  possible  $50.00  more;  he  may  have  expended  $30.00 
for  nursing ;  this  gives  a  total  actual  cost  to  the  claimant 
of  $355.00,  asstuning  that  at  the  end  of  ten  weeks  he 
can  restune  his  occupation  and  that  he  has  incurred  no 
other  losses.  To  this  a  certain  svmi  might  be  added  to 
compensate  him  for  the  pain  and  suffering  which  we 
may  place  at  $100.00.  For  the  temporary  injury, 
therefore,  to  a  broken  arm,  in  the  light  the  circtmi- 
stances  described,  we  would  in  this  manner  arrive  at  a 
figure  of  $455.00.  We  have  placed  arbitrary  figures 
upon  the  various  items  for  the  simple  reason  that  we 


NATURE   AND    EXTENT    OF   INJURIES    SUSTAINED  37 

are  not  taking  an  actual  case.  The  considerations 
that  affect  the  value  of  a  claim  in  an  actual  case  might 
result  in  increasing  or  in  decreasing  the  figures  that 
have  been  given  above. 

35.  Permanent  injuries. 

If  the  injury  is  permanent  the  problem  is  of  another 
sort.  The  physical  examination  will  show  to  a  certain 
extent  what  is  the  probability  of  a  total  or  partial  dis- 
ability. We  can  say  at  once  that  the  removal  of  an 
arm  or  leg  is  a  total  and  permanent  disability.  We  can 
say  of  a  broken  arm  that  it  is  a  partial  and  temporary 
disability  in  almost  all  cases.  Our  investigation,  how- 
ever, does  not  end  at  this  point.  The  value  of  the 
claimant's  right  to  compensation  depends  also  on  the 
possibility  of  his  injuries  taking  a  serious  turn  in  the 
future.  If  his  injuries  have  resulted  in  incipient 
paralysis,  we  are  bound  to  consider  the  possibility  of 
this  paralysis  increasing  and  extending  to  the  claim- 
ant's whole  system.  If  one  of  his  eyes  has  been  badly 
affected,  there  is  a  possibility  that  by  sympathy,  the 
other  one  will  become  diseased.  These  are  broad  but 
typical  instances  and  medical  science  will  furnish  us 
with  hundreds  of  other  illustrations  of  like  nature. 

36.  Previous  injuries. 

But  the  injury  disclosed  by  the  examination  of  the 
claimant's  person  may  not  be  an  entirely  new  injury. 
He  may  have  had  nervous  trouble  prior  to  the  accident 
which  has  been  accentuated  by  the  accident.  He  may 
have  been  well  on  the  road  to  recovery  from  typhoid 
fever,  and  the  accident  may  have  produced  a  relapse. 
He  may  have  had  a  hernia  prior  to  the  accident  and  a 
double  hernia  subsequent  to  it.  The  physical  examina- 
tion will  determine  with  more  or  less  certainty  to  what 


38  CLAIMS    FIXING   THEIR   VALUES 

extent  the  claimant's  present  condition  is  an  aggrava- 
tion of  his  previous  condition. 

37.  The  claimant's  statement. 

In  general,  the  first  news  of  the  claimant's  condition 
comes  from  the  claimant  himself.  That  statement 
furnished  by  the  claimant  is  of  paramount  importance 
in  determining  the  value  of  his  claim.  It  is  a  living 
human  document  that  is  bristling  with  information. 
It  tells  much  more  than  is  contained  in  the  mere  words 
written  by  the  claimant  or  that  have  fallen  from  his 
lips.  It  sometimes  bears  upon  its  face  unmistakable 
evidence  of  the  integrity  of  the  claimant.  It  may  just 
as  well  reveal  at  once  his  duplicity ;  it  may  show  so  great 
an  exaggeration  of  his  injuries  as  to  put  the  adjuster  at 
once  on  his  guard  against  possible  extortion.  Many 
instances  occur  in  actual  cases  that  illustrate  the  matter 
perfectly.  A  passenger  in  a  car  recently  suffered  a 
slight  shock  because  of  the  breaking  of  a  pane  of  glass 
in  a  very  slight  collision.  Some  months  after  the  colli- 
sion, however,  a  claim  was  presented  based  upon  an 
advanced  condition  of  tuberculosis  w^hich  the  claimant 
alleged  was  due  to  the  collision  and  the  breaking  of  the 
pane  of  glass.  It  is  true  that  this  case  resulted  in  a 
rebuke  from  the  court  to  the  claimant,  but  all  such 
cases  are  not  always  so  broad  nor  so  grossly  unfair. 
In  fact,  they  shade  off  to  cases  where  it  is  well  nigh 
impossible  to  say  to  what  extent  the  claimant  has 
exaggerated  and  to  what  extent  he  has  manufactured 
complaints. 

38.  Application  of  principles. 

We  have  now  considered  in  the  most  general  way  the 
circtmistances  or  factors  that  affect  the  value  of  the 
claim.     We  are  speaking  now  simply  of  the  injuries 


NATURE  AND    EXTENT    OF   INJURIES    SUSTAINED  39 

sustained.  We  are  not  dealing  with  the  q  estion  of 
whether  or  not  the  defendant  has  been  guilty  of  negli- 
gence in  such  a  way  as  to  make  him  liable  imder  the 
law.  That  question  has  already  been  dealt  with.  It 
may  be  assumed  for  the  present  purpose  that  liability 
has  been  fixed  upon  the  defendant  and  that  he  must 
pay  at  all  events.  Our  whole  question  now  is,  how 
much  he  shall  be  paid.  It  has  been  seen  that  the  first 
element  of  damage  that  we  must  consider  is  the  nature 
and  extent  of  the  injuries.  We  have  dealt  with  only 
general  principles  in  this  chapter.  Let  us  now  take 
some  concrete  cases  and  apply  the  principles  that  we 
have  examined. 

Case  I. 

39.     Examples. 

William  Hawkins  has  been  injured  by  the  collapse 
of  a  scaffold.  The  circumstances  are  such  that  his 
employer  must  compensate  him  for  any  one  of  a  dozen 
reasons.  The  reason  that  we  shaU  give  in  this  case  is 
that  the  foreman  of  the  Acme  Paint  Company,  for  whom 
Hawkins  was  working,  sent  him  with  a  dozen  men  to  the 
top  of  the  scaffold,  which  was  insufficient  to  bear  their 
weight.  The  foreman  was  warned  of  the  danger  and 
took  a  chance  that  the  strength  of  the  scaffold  would 
prove  sufficient.  The  scaffold  collapsed  and  Hawkins 
with  some  others  fell  to  the  ground  from  a  height  of 
40  ft.  striking  upon  a  cement  pavement.  Hawkins' 
employers  admit  their  liability.  The  sole  question  to 
be  determined  is  the  nature  and  extent  of  Hawkins' 
injuries.  In  the  fall,  Hawkins  breaks  several  bones  in 
his  foot.  The  nature  of  the  break  is  such  that  only  the 
most  careful  medical  attention  can  save  the  foot  for 
him,  and  give  the  slightest  encouragement  that  it  will 
be  useful  in  the  future. 


40  CLAIMS   FIXING   THEIR   VALUES 

40.     Analysis  of  Case  I. 

Let  us  say  at  once  in  a  case  of  this  sort  that  the  more 
quickly  and  graciously  Hawkins'  employer  agrees  with 
him  upon  the  value  that  may  be  set  upon  his  injuries, 
the  better  it  will  be  for  all  parties.  The  following  facts 
must  be  considered:  Hawkins  by  trade  is  a  painter. 
Not  a  little  of  his  worth  to  his  employer  depends  upon 
his  agility  in  moving  about  in  more  or  less  exposed 
positions.  He  is  expected  to  work  on  lofty  scaffolds, 
and  to  transfer  himself  from  place  to  place  while  40, 
50,  or  even  100  ft.  from  the  ground.  Any  uncertainty 
in  his  movements,  therefore,  deprives  him  of  a  large 
part  of  his  value  as  a  painter.  He  presents  to  his 
attorney  a  claim  for  damages,  showing  that  his  foot  has 
been  broken  in  three  places ;  that  his  nervous  condition 
is  extremely  serious;  that  his  courage  in  ascending 
scaffolds  or  other  dangerous  places  has  been  perma- 
nently reduced ;  that  the  doctors  offer  a  reasonable  cer- 
tainty that  his  leg  will  be  of  some  service  in  three 
months  time,  and  that  in  a  year's  time,  it  might  be  con- 
sidered cured.  The  physical  examination  coincides  al- 
most exactly  with  the  statement  given  by  Hawkins. 
We  have  here  eliminated  entirely  any  question  of  the 
claimant's  statement  being  exaggerated  or  fraudulent. 
There  are  several  elements  here  that  deserve  considera- 
tion. The  first  is  that  the  injuries  are  to  a  certain 
extent  permanent.  It  is  entirely  improbable  that  his 
earning  power  in  his  line  of  work  will  ever  be  as  great 
as  it  has  been.  The  case,  therefore,  presents  a  certain 
element  of  permanent  injuries  and  another  element  of 
temporary  injuries.  Assuming  that  Hawkins  is  forty 
years  old,  his  earning  power  may  have  been  diminished 
at  least  $3.00  per  week  for  the  remainder  of  his  life;  a 
large  item  to  consider  assuming  an  expectancy  of  at 
least  twenty  years.     If  his  salary  is  $20.00  per  week, 


NATURE   AND    EXTENT    OF   INJURIES    SUSTAINED  4 1 

his  loss  for  the  year  during  which  he  cannot  resume 
employment  will  be  at  least  $1000.00,  while  his  expenses 
for  medical  attendance,  etc.,  will  be  proportionate. 
These  factors  are  modified  by  many  other  considera- 
tions, but  admitting  the  liability  of  the  employer  in 
cases  of  this  character,  it  would  seem  inexpedient  to 
delay  unnecessarily  their  prompt  adjustment. 

Case  II 

41.  Examples. 

Assuming  again  the  liability  of  the  defendant.  The 
claimant,  Henry  Smith,  while  a  passenger  in  an  elevator 
controlled  by  the  Anglo-American  Title  Company,  is 
injured  by  a  fall  of  the  elevator  from  a  height  of  10 
stories.  It  is  known  that  after  the  accident,  Smith  was 
able  to  walk  to  his  office,  and  was  not  confined  to  his 
bed  for  a  period  of  more  than  a  few  days  at  the  most. 
His  claim  for  damages,  written  by  himself,  alleges 
permanent  disability;  the  aggravation  of  a  hernia,  or 
serious  internal  injuries;  great  nervous  disorders;  a 
shock  that  is  partially  depriving  him  of  his  eyesight;  a 
bronchial  trouble  which  he  alleges  has  developed  since 
the  accident;  a  lameness  which  he  claims  impedes  his 
movements;  and  many  other  injuries  which  we  need 
not  detail.  In  view  of  the  fact  that  Smith  has  hardly 
lost  any  time  from  his  business,  and  of  the  fact  that  his 
injuries  as  detailed  by  himself  seem  sufficient  to  have 
killed  any  ordinary  mortal,  the  investigator  is  at  once 
put  upon  his  guard. 

42.  Exaggerated  statements. 

Smith,  the  claimant,  has  at  least  enumerated  all  the 
possible  injuries  short  of  the  loss  of  his  life,  that  could 
have  resulted  from  such  an  accident.     The  results  of  the 


42  CLAIMS   FIXING   THEIR   VALUES 

physical  examination  in  this  case  must  be  scanned 
with  the  utmost  care.  If  Smith  should  refuse,  as 
claimants  have  a  right  to  do,  to  permit  an  examination 
of  his  person,  the  need  of  care  is  redoubled.  Where  an 
action  is  pending  in  court,  there  are  proceedings  avail- 
able to  compel  the  claimant  to  submit  to  a  physical 
examination  by  physicians  representing  the  defendant, 
but  in  some  states,  this  examination  is  only  compulsory 
within  three  or  four  months  of  the  time  of  the  trial,  so 
that  the  investigator  or  adjuster  necessarily  must 
investigate  every  fact  accessible  to  him  in  the  most 
careful  manner.  If  Case  I  betrayed  facts  that  would 
inform  any  experienced  adjuster  immediately  that  the 
case  should  be  settled  promptly,  Case  II  suggests  that 
J  ossible  settlement  shoiild  be  deferred  imtil  after  a 
most  thorough  investigation.  There  is  apparently 
no  loss  of  earning  power  to  consider  and  the  actual 
injuries  to  Smith,  if  he  refuses  to  submit  to  an  examina- 
tion, are  to  some  extent  likely  to  prove  unfounded. 

43.     Summary. 

We  may  leave  this  chapter,  therefore,  with  this 
observation,  that  having  disposed  of  the  question  of 
liability,  the  valuation  of  a  claim  depends  largely  upon 
the  nature  and  extent  of  the  injuries  sustained.  If  the 
facts  concerning  the  occurrence  are  to  be  thoroughly 
investigated,  those  concerning  the  condition  of  the 
claimant  are  to  be  most  thoroughly  investigated.  For 
this  is  the  point  at  which  possible  fraud  or  exaggeration 
is  most  likely  to  be  undertaken. 


44 
45 
46 

47 
48 

49 
5° 
51 
52 
53 
54 
55 
56 
57 
58 
59 
6o 
6i 


CHAPTER   V 

THE  FACTS  OF  THE  OCCURRENCE 

Investigation  of  facts. 

Principles  of  investigation. 

Interviewing  company  employees. 

Interviewing  the  claimant. 

Interviewing  the  witnesses. 

Witnesses  classified. 

Forms  of  evidence. 

Attending  physician. 

The  physical  examination. 

Special  features. 

The  scene  of  the  accident.     Detailed  reports 

Unreported  accidents. 

Previous  accidents  or  claims. 

Attitude  of  management. 

Impartial  investigations. 

Prompt  investigations. 

Thorough  investigations. 

Clean  investigations. 


44.     Investigation  of  facts. 

Before  one  can  expect  to  arrive  at  a  reasonably- 
accurate  approximation  of  the  value  of  a  claim  for 
damages,  he  necessarily  must  first  possess  himself  of  a 
fairly  clear  understanding  of  the  probable  facts  of  the 
particular  occurrence  upon  which  is  based  the  demand 
for  compensation.  If  this  information  be  difficult  of 
attainment,  or  should  serious  inconsistencies  develop 
with  respect  to  essential  details,  or  the  exact  relation- 
ship between  important  facts  appear  obscure  or  even 
impossible  of  reconcilement,  the  difficulties  of  the  ad- 
juster in  harmonizing  the  evidence  in  any  given  case 
are  correspondingly  increased. 

While  it  is  true,  of  course,  that  the  investigation  of  a 

43 


44  CLAIMS   FIXING   THEIR  VALUES 

case  ordinarily  is  completed,  or  at  least  should  have 
been  completed  before  reaching  the  hands  of  the 
adjuster,  still  it  may  not  prove  amiss  at  this  time  for  us 
to  review  briefly  certain  features  of  the  work  which 
appear  to  have  a  more  or  less  direct  bearing  upon  a 
subject  of  such  obvious  importance  as  the  proper  in- 
vestigation of  accidents.  "Non-liability"  accidents, 
when  insufficiently  investigated,  all  too  frequently  as- 
simie  "liability"  proportions  when  viewed  from  the 
standpoint  of  the  adjuster. 

45.     Principles  of  investigation. 

We  do  not  know  of  any  particular  mode  of  investiga- 
tion, which,  as  a  whole,  may  be  said  to  be  superior  to 
all  others.  Different  concerns  follow  different  methods 
in  this  respect,  each  seeming  to  have  devised  and  per- 
fected a  course  of  procedure  which  in  the  light  of  ex- 
perience seems  best  adapted  to  meet  the  particular 
requirements  of  the  locality  for  which  it  was  especially 
designed.  There  are,  however,  certain  well-defined, 
broad-gauge  principles  which  may  be  found  with  uni- 
form regularity  in  practically  all  well  conducted  claim 
departments  in  their  investigations  of  accidents  and 
claims  for  damages.  Not  all  of  these,  of  course,  are 
applicable  to  every  individual  case,  for  particular  cases 
oftentimes  require  special  investigations  along  excep- 
tional lines.  These  principles  cover  a  relatively  wide 
range  of  territory,  and  since  it  is  essential  that  the 
adjuster  should  be  able  instantly  to  detect  the  absence 
of  data  of  vital  importance  to  his  case,  we  may  properly 
digress  for  the  moment  while  we  examine  in  some  detail 
certain  features  of  this  phase  of  the  work.  These  we 
shall  consider  in  the  order  in  which  they  ordinarily 
would  receive  attention  at  the  hands  of  an  experienced 
investigator. 


THE  FACTS  OF  THE  OCCURRENCE  45 

The  first  step  in  the  investigation  of  an  accident  very 
properly  consists  of  a  careful  examination  of  such  re- 
ports, statements,  or  other  preliminary  data  as  may  have 
been  submitted  to  the  department  by  company  repre- 
sentatives who  were  present  at  the  time  of  the  occur- 
rence, and  who,  therefore,  possess  first-hand  knowledge 
of  the  details.  From  the  information  thus  acquired  a 
general  impression  may  be  formed  as  to  the  probable 
facts  in  the  case,  and  temporary  instructions  issued 
for  the  immediate  guidance  of  the  investigators.  Due 
allowances  necessarily  will  be  made  for  inaccuracies 
which  not  infrequently  play  a  prominent  part  in  these 
early  reports.  Excitement,  exaggeration,  confusion, 
and  attempts  to  "cover  up"  often  prevent  their  being 
accepted  at  "face  value"  until  corroborative  evidence 
has  been  secured. 

46.     Interviewing  company  employees. 

The  next  step,  then,  centers  about  the  task  of  per- 
sonally interviewing  company  employees,  in  order  that 
detailed  statements  may  be  obtained,  setting  forth 
with  clearness  and  exactness  the  precise  facts  of  the 
mishap.  At  this  time  numerous  details  will  be  dis- 
closed which  were  not  incorporated  in  the  original 
reports.  These  interviews  will  be  reduced  to  writing 
and  the  signature  of  each  employee  attached,  properly 
witnessed.  The  added  precaution  may  further  be 
taken  of  having  these  statements  attested  by  a  notary. 

Then  follows  an  examination  of  the  police  blotter  for 
the  names  of  additional  witnesses,  the  name  and 
address  of  the  injured  party,  provided  the  same  was  not 
correctly  secured  at  the  time;  the  name  of  the  hospital, 
and  such  additional  information  as  it  may  contain. 
An  examination  of  the  records  of  the  hospital  may  still 
further  facilitate  the  work  of  investigation. 


46  CLAIMS   FIXING   THEIR   VALUES 

Some  few  companies  refrain  from  communicating  in 
any  way  with  the  injured  party.  Unless  this  practice 
is  being  pursued,  efforts  may  now  be  made  to  secure  an 
interview  with  the  person  directly  concerned,  or  if  this 
be  impracticable  or  inadvisable,  then  with  some  mem- 
ber of  his  or  her  family,  or  even  with  a  close  personal 
friend.  Seldom  will  anything  be  gained  by  unseemly 
haste  in  this  connection.  The  personal  wishes  of  the 
claimant  or  of  his  family  should  be  fully  respected. 
Forced  interviews  not  infrequently  prejudice  a  case 
and  at  times  produce  results  somewhat  unfortunate. 

47.     Interviewing  the  claimant. 

The  investigator  having  made  known  his  mission  and 
the  courtesy  of  an  interview  having  been  accorded  him, 
he  now  is  in  a  position  to  extend  to  the  injured  party 
the  sympathy  and  regrets  of  his  employers,  and  to 
assure  him  of  a  prompt  and  impartial  investigation  of 
the  entire  affair.  He  also  will  extend  to  him  the 
opportunity  of  describing  in  detail  his  own  version  of 
the  mishap,  this  oftentimes  being  reduced  to  writing, 
and  to  which  he  may  affix  his  signature  should  he  feel 
so  inclined.  The  greatest  care  should  be  exercised  to 
quote  accurately  and  correctly  all  facts  described  by 
the  claimant,  using  in  so  far  as  may  be  practicable  the 
exact  phraseology  employed  in  the  recital.  Before 
he  shall  be  permitted  to  sign  the  statement,  it  is  im- 
perative that  he  should  have  proof-read  the  instrument 
in  its  entirety,  and  that  the  recital  of  the  facts  therein 
set  forth  shall  meet  with  his  approval.  Should 
changes,  corrections,  or  insertions  of  any  moment 
become  necessary,  a  new  draft  should  immediately  be 
prepared. 

Not  only  should  this  interview  have  to  do  with  the 
essentials  of  the  mishap  itself,  but  as  well  with  various 


THE  FACTS  OF  THE  OCCURRENCE  47 

correlative  facts  which  may  prove  ^  of  assistance  sub- 
sequently in  arriving  at  a  satisfactory  disposition  of 
the  difficulty.  The  probable  value  of  an  honest, 
legitimate  claim  for  damages  will  in  no  wise  be  lessened 
or  affected  by  a  reasonably  thorough  investigation  of 
all  of  the  facts  upon  which  it  rests. 

48.  Interviewing  witnesses. 

The  work  of  intei  viewing  witnesses  obviously  is  one 
which  requires  at  times  the  exercise  not  only  of  tact  and 
diplomacy,  but  of  patience,  perseverance  and  ingenuity 
as  well.  Prejudice,  ignorance,  and  undue  suspicion 
not  infrequently  combine  to  render  difficult  the  task  of 
the  investigator.  Greater  responsibility  attaches  to 
this  position  than  would  at  first  seem  apparent  to  the 
uninitiated,  for  the  entire  subsequent  history  of  a  case 
may  depend  upon  or  be  markedly  influenced  by  the 
work  of  the  investigator.  In  large  measure  both  the 
claimant  and  the  defendant  company  are  dependent 
upon  his  good  offices  for  the  faithful  and  conscientious 
discharge  of  his  duties. 

49.  Witnesses  classified. 

Witnesses  as  a  whole  are  subject  to  various  classi- 
fications, among  which  may  be  noted  the  following 
customary  designations : 

Defendant's  witnesses.  Those  obtained  by  company 
representatives  at  the  time  of  the  mishap,  and  usually 
incorporated  as  an  integral  part  of  the  original  reports 
of  the  occurrence. 

Plaintiff's  witnesses.  Those  furnished  or  obtained 
by  the  injured  party  or  by  his  friends  or  representa- 
tives. 

Interested  witnesses.  Those  considered  as  having  a 
personal  interest  of  one  character  or  another  in  the  out- 


48  CLAIMS   FIXING   THEIR   VALUES 

come  of  the  controversy.  Employees  of  the  company, 
relatives  of  the  injured  party,  personal  friends  of  the 
claimant,  former  claimants  against  the  defendant,  or 
persons  known  to  be  hostilely  inclined  toward  either  of 
the  principals,  are  usually  included  in  this  classification. 

Disinterested  witnesses.  Those  having  no  especial 
interest  in  either  party  to  the  controversy.  Popularly 
regarded  as  being  without  bias  or  prejudice. 

Police  witnesses.  Such  as  may  have  been  secured 
through  the  agency  of  policemen  or  other  guardians  of 
the  peace.  Usually  made  a  part  of  the  records  of  the 
police  department  and  therefore  accessible  alike  to 
plaintiff  or  defendant. 

Vicinity  witnesses.  Those  whose  names  were  not 
secured  at  the  time  of  the  occurrence,  but  whose  connec- 
tion with  the  incident  is  disclosed  through  the  medium 
of  a  house-to-house  canvass  of  the  immediate  neigh- 
borhood of  the  scene  of  the  mishap. 

Advertised  witnesses.  Used  in  a  double  sense. 
Either,  the  appearance  in  the  public  prints  of  the  names 
and  addresses  of  witnesses  in  the  published  accounts 
of  the  mishap,  or  else  the  uncovering  of  possible  wit- 
nesses through  the  insertion  of  advertisements  in  the 
daily  newspapers. 

This  list,  however,  would  be  incomplete  without 
reference  to  still  another  distinct  class  of  witnesses  to 
whom  no  special  designation  seems  to  have  been  given, 
but  whom  we  may  term  "consideration  witnesses,"  in 
that  they  demand  a  consideration  or  emolument  of 
some  character  in  return  for  their  testimony.  Their 
grasping  proclivities  lead  sometimes  to  a  demand  for 
money,  or  for  employment,  or  for  the  granting  possibly 
of  some  special  favor  or  concession.  Plaintiffs,  as  well 
as  defendants,  presumably  encounter  this  type  of 
witness  in  their  search  for  evidence.     While  it  does  not 


THE  FACTS  OF  THE  OCCURRENCE  49 

necessarily  follow  that  a  witness  of  this  school  would 
deliberately  commit  perjury  in  the  subsequent  hearing 
of  a  case,  still  the  presumption  of  truthfulness  is  not 
sufficiently  strong  in  his  behalf  to  warrant  one's  repos- 
ing even  a  scintilla  of  confidence  in  his  testimony. 
The  demands  of  "consideration  witnesses"  very  prop- 
erly merit  the  contemptuous  silence  with  which  they 
invariably  are  received,  alike  by  plaintiff  and  by 
defendant. 

50.  Forms  of  evidence. 

The  exact  form  in  which  evidence  is  obtainable 
depends  oftentimes  upon  the  circumstances  surround- 
ing each  individual  occurrence.  Some  witnesses  can  be 
induced  to  give  only  a  brief  outline  of  their  knowledge 
of  the  matter  in  hand.  Others,  though  less  reticent, 
nevertheless  refuse  to  permit  the  interviewer  even  to 
make  notes  of  their  conversation,  while  still  others 
will  give  a  written  interview  but  will  decline  to  certify 
to  its  accuracy  by  affixing  their  signature.  The  great 
majority  of  witnesses,  however,  evince  but  little  hesi- 
tancy in  furnishing  the  fullest  details  over  their  signa- 
tures, providing  only  that  the  investigator  has  quoted 
them  fairly  and  accurately. 

Upon  large  systems  a  very  considerable  number  of 
witnesses  in  cases  of  minor  importance,  or  even  in 
some  instances  of  established  liability,  are  satisfactorily 
interviewed  through  the  mails.  Printed  blanks  are 
used  which  call  only  for  the  more  important  details,  and 
a  stamped  addressed  envelope  is  enclosed  for  the  reply. 

51.  Attending  physician. 

A  preliminary  statement  by  the  attending  physician 
often  is  of  much  assistance  during  the  early  stages  of  an 
investigation.     The  particular  nature  and  character  of 


50  CLAIMS   FIXING   THEIR   VALUES 

certain  injuries  occasionally  bear  a  peculiar  relationship 
to  the  facts  of  the  occurrence,  supporting  or  controvert- 
ing, as  the  case  may  be,  essential  features  in  its  develop- 
ment. In  considering  this  aspect  of  the  situation,  how- 
ever, the  degree  of  importance  to  be  attached  to  such  a 
statement  will,  of  course,  be  governed  somewhat  by  the 
character  and  standing  of  the  physician  concerned. 
Due  allowances  must  necessarily  be  made  for  bias, 
prejudice,  open  hostility,  known  incompetency,  or  a 
recognized  tendency  toward  exaggeration. 

52.  The  physical  examination. 

At  the  proper  time  a  request  will  be  made,  usually  in 
writing,  that  it  may  become  a  matter  of  record,  for  the 
privilege  of  a  physical  examination  by  the  defendant's 
physician  or  surgeon,  with  a  view  to  determining  the 
precise  nature  and  extent  of  the  injuries  alleged  to  have 
been  sustained  at  the  time  of  the  mishap.  The  nature 
or  severity  of  the  injury  alleged,  the  character  and 
general  reputation  of  the  physician  in  attendance,  and 
likewise  of  the  attorney  if  one  has  been  retained,  as 
well  as  certain  other  special  conditions  or  qualifications, 
are  all  matters  deserving  of  thoughtful  consideration  in 
selecting  surgeons  for  assignment  to  cases  of  recognized 
importance.  This  examination  invariably  is  made  in 
the  presence  and  with  the  assistance  of  the  attending 
physician.  Its  general  scope  and  character  necessarily 
depend  in  large  measure  upon  the  particular  circum- 
stances surrounding  each  individual  case. 

53.  Special  features. 

The  physical  or  mental  condition  of  the  claimant  at 
the  time  of,  or  immediately  preceding  the  moment  of 
the  occurrence  not  infrequently  furnishes  a  satisfactory 
explanation  of  conduct  which  otherwise  would  seem 
inexplicable.     Mental  derangement,  either  permanent 


THE   FACTS   OF   THE   OCCURRENCE  5 1 

or  temporary,  over-indulgence  in  intoxicants,  defective 
hearing,  impaired  eyesight,  organic  weaknesses,  attacks 
of  vertigo  or  other  forms  of  sudden  illness,  all  contribute 
daily  their  share  to  the  general  accident  toll.  The 
practice  so  frequently  followed  of  attempting  to  conceal 
the  existence  of  such  details  oftentimes  renders  most 
difficult  the  task  of  arriving  at  a  reasonably  satisfactory 
determination  of  the  proximate  cause  of  an  accident. 
Prevailing  modes  or  particular  styles  of  wearing 
apparel  have  of  late  years  played  a  somewhat  conspicu- 
ous part  in  contributing  to  the  total  number  of  mishaps 
wherein  women  sustain  injuries.  Especially  has  this 
proven  true  with  respect  to  steam  railroad  operation. 
Unfamiliarity  with  local  conditions,  disregard  of  estab- 
lished traffic  regulations,  failure  to  observe  restrictions 
or  obligations  imposed  by  special  ordinances  or  statutes, 
latent  defects,  mechanical  failure,  and  countless  other 
contributing  causes,  direct  or  indirect,  all  constitute 
additional  problems  which  may  prove  of  the  most  vital 
importance  to  the  ultimate  issue  of  a  case. 

54.     The  scene  of  the  accident.     Detailed  reports. 

With  a  view  to  testing  the  accuracy  of  some  special 
portion  of  the  evidence,  or  of  determining  the  practica- 
bility of  a  particular  theory  or  explanation,  or  of  sup- 
porting or  combatting  essential  features  of  a  case,  the 
scene  of  a  mishap  frequently  is  subjected  to  the  most 
painstaking  scrutiny.  Photographs  of  the  locality  are 
taken  from  different  positions  and  at  various  angles 
in  order  that  indisputable  evidence  may  be  obtained  as 
to  certain  existing  conditions  at  the  time  of  the  occur- 
rence. Company  employees  and  other  eye-witnesses 
may  even  be  asked  to  re-enact  the  principal  features  of 
the  affair  upon  the  scene,  in  an  effort  to  establish 
beyond  peradventure  the  precise  facts  of  the  mishap. 


52  CLAIMS   FIXING   THEIR   VALUES 

Steps  may  then  be  taken  to  procure  an  exact  map  or 
plan  of  the  vicinity  of  the  scene  of  the  accident,  showing 
in  detail  all  streets,  roads  or  other  highways,  both  main 
and  intersecting,  sidewalks,  gutters,  grades,  distances, 
location  of  tracks,  street  lights,  curves,  switches,  turn- 
outs, cuts,  bridges,  culverts,  poles,  platforms,  trees, 
houses,  obstructions,  warning  signs,  guards,  lights  or 
signals. 

In  order  that  they  may  be  made  matter  of  record, 
special  detailed  reports  oftentimes  are  secured  from 
superintendents,  foremen,  inspectors,  or  their  assist- 
ants, setting  forth  with  clearness  and  exactness,  the 
results  of  their  observation  or  examination  of  rolling 
stock,  roadbed,  overhead  construction  or  other  equip- 
ment, with  a  view  to  determining  whether  the  same 
had  been  properly  maintained  and  kept  in  satisfactory 
working  order. 

55.     Unreported  accidents. 

Thus  far  we  have  assumed  that  the  customary  acci- 
dent report  has  been  available  as  a  basis  for  investiga- 
tion in  such  cases  as  have  given  rise  to  the  presentation 
of  claims  for  damages.  We  must  now  consider  a 
somewhat  different  classification  of  the  subject:  one 
which  presents  to  the  investigator  or  adjuster  problems 
of  a  most  perplexing  character,  and  which,  if  unskill- 
fuUy  handled,  may  prove  of  serious  moment  to  his 
employers.  We  refer  to  what  are  commonly  termed 
"blind  or  unreported"  accidents. 

It  is  customary  to  require  of  employees  a  prompt 
detailed  report  of  every  mishap,  irrespective  entirely  of 
any  question  of  apparent  severity  or  importance,  as  it 
may  appear  to  them  at  the  time  of  the  occurrence. 
Yet,  at  times,  for  reasons  best  known  to  themselves, 
employees  occasionally  choose  to  disregard  these  in- 


THE  FACTS  OF  THE  OCCURRENCE  53 

structions.  Having  once  taken  this  stand,  they  natur- 
ally are  extremely  reluctant  subsequently  to  admit  any 
knowledge  of  the  occurrence,  and  thus  render  still  more 
difficult  the  task  of  the  investigator  to  arrive  at  a  satis- 
factory determination  of  the  probable  facts  of  the  inci- 
dent. This,  in  turn,  leads  to  still  further  complications, 
in  that  the  investigator  or  adjuster  may  as  a  result 
entertain  serious  doubts  whether  such  an  accident 
really  occurred  in  point  of  fact :  in  other  words,  whether 
the  claim  may  not  have  been  conceived  in  fraud  and 
deception. 

The  skill  of  both  investigator  and  adjuster  is  taxed 
to  the  uttermost  limits  in  handling  cases  of  this  de- 
scription. Such  meager  facts  as  may  be  obtainable 
have  to  be  weighed  in  the  light  of  reason  and  experi- 
ence with  the  utmost  exactness.  Resourcefulness, 
determination,  and  the  ability  accurately  to  read 
htunan  nature  often  uncover  the  basic  facts  of  such  a 
case,  once  a  searching  investigation  has  failed  to  clarify 
the  situation. 

56.     Previous  accidents  or  claims. 

It  is  not  an  extraordinary  occurrence  for  a  claimant's 
name  to  appear  more  than  once  upon  the  records  of  the 
same  company.  Before  a  case,  therefore,  is  passed  upon 
finally  for  adjustment,  it  is  incumbent  upon  either  the 
investigator  or  the  adjuster  to  examine  the  records  of 
his  department  and  to  ascertain  whether  prior  claims 
may  not  have  been  presented  by  the  same  party.  In 
the  event  of  such  proving  to  be  the  case,  a  digest  of  the 
facts,  at  least,  should  immediately  be  incorporated  in 
the  evidence  for  the  future  guidance  and  protection  of 
the  adjuster.  This  in  a  measure  guards  against  the 
possibility  of  one's  being  obliged  to  pay  a  second  or  even 
a  third  time  for  identically  the  same  injury.     In  like 


54  CLAIMS    FIXING    THEIR   VALUES 

manner,  circumstances  permitting,  cases  of  any  mo- 
ment should  first  be  reported  to  both  the  local  and  the 
national  index  bureaus,  as  a  precaution  against  the 
inroads  of  "floaters  and  repeaters." 

Certain  types  of  claimants  instinctively  arouse  doubt 
in  the  mind  of  the  investigator  as  to  their  good  faith. 
It  may  therefore  be  deemed  advisable  that  their  past 
record  be  scrutinized,  their  reputation  inquired  into, 
and  their  general  standing  in  the  community  deter- 
mined. Their  occupation  may  be  somewhat  obscure, 
or  their  earning  capacity  enshrouded  in  mystery,  or 
their  alleged  losses  plainly  exaggerated  or  inflated.  It 
oftentimes  is  difficult,  if  not  actually  impossible,  to 
secure  such  information  in  the  manner  in  which  inves- 
tigations ordinarily  are  conducted,  and  detectives  or 
secret  service  inspectors  are  therefore  occasionally  as- 
signed to  cases  of  this  character. 

57.  Attitude  of  management. 

In  a  measure,  it  is  sometimes  possible  to  judge  of  the 
general  attitude  of  a  concern  toward  its  patrons  and 
employees  by  noting  the  policy  of  its  management  as 
reflected  through  its  claim  department,  with  respect  to 
such  details  as  will  hereinafter  be  touched  upon.  It  is 
not  to  be  expected,  of  course,  that  liberality  in  the 
adjusting  of  claims  will  be  carried  to  the  extreme  in 
order  that  all  the  demands  of  claimants  shall  be  satis- 
fied, dollar  for  dollar,  irrespective  of  the  relative  merits 
of  their  cases.  The  true  test  is  merely  one  of  fairness 
and  of  justice.  Nothing  more  can  be  asked,  nothing 
more  should  be  expected. 

58.  Impartial  investigations. 

A  temporary  advantage,  if  gained  unfairly,  is  no 
advantage  at  all,  and  not  infrequently  will  prove  even- 


THE  FACTS  OF  THE  OCCURRENCE  55 

tually  to  be  a  distinct  disadvantage.  This  holds  true 
of  claim  work,  as  of  all  other  walks  of  life,  and  consti- 
tutes an  axiom  that  is  not  to  be  lightly  regarded,  if 
success  is  to  attend  our  efforts. 

It  may  at  first  seem  captious  for  us  to  dwell  upon  a 
point  so  vitally  essential  to  successful  claim  work  as  the 
obvious  necessity  for  sincerity  in  the  customary  inves- 
tigation of  accidents,  for  without  this  quality  the  task 
of  examining  evidence  and  of  determining  responsibility 
would  be  a  most  hazardous  undertaking.  In  expla- 
nation of  this,  however,  it  may  be  observed  that  while 
the  average  head  of  a  department  genuinely  intends 
that  truthfulness  and  accuracy  shall  characterize  all  of 
his  investigations,  he  may  himself  unconsciously  be 
taking  it  for  granted  that  all  of  his  assistants  have  an 
equally  acute  appreciation  of  this  highly  important 
phase  of  the  work. 

By  this  we  do  not  mean  to  infer  that  responsible 
investigators  would  deliberately  manufacture  evidence, 
or  that  they  would  intentionally  mislead  their  superiors 
as  to  the  real  facts  of  a  case.  With  men  of  this  caliber 
we  have  no  concern.  We  intend  rather  to  direct 
attention  to  the  danger  thoughtlessly  incuned  occasion- 
all}^  by  the  investigator  who  unintentionally  inclines 
somewhat  toward  the  practice  of  influencing  state- 
ments by  giving  undue  prominence  to  unessentials,  or 
by  lending  strength  to  wavering  witnesses  who  after- 
ward "fall  down"  when  placed  upon  the  stand,  or  by 
submitting  optimistic  reports  of  one  character  or 
another  which  are  not  fully  justified  by  the  facts. 

While  not  actuated  by  improper  motives,  such  work 
nevertheless  militates  against  impartial  investigations 
and  invariably  is  unfair  not  onl}^  to  the  claimant  or 
witnesses  involved,  but  to  the  defendant  "company  as 
well,  inasmuch  as  its  adjusters  or  other  representatives 


56  CLAIMS   FIXING   THEIR  VALUES 

may  subsequently  be  given  an  incorrect  or  erroneous 
impression  of  the  strength  or  character  of  a  case. 

To  the  adjuster,  then,  should  be  given  the  safeguards 
guaranteed  by  fair  and  impartial  investigations  upon 
such  matters  as  may  be  assigned  to  him  for  final  dis- 
position. 

69.     Prompt  investigations. 

Few  indeed  are  the  concerns  which  knowingly  per- 
mit their  investigations  to  be  delayed  unnecessarily, 
for  the  fact  nowadays  is  too  generally  recognized  that 
while  little  is  to  be  gained,  much  may  be  lost  by  dilatory 
methods  in  this  direction. 

If  a  case  is  to  be  marked  for  settlement,  it  is  due  the 
adjuster  that  the  facts  should  be  accurately  ascertained 
at  the  earliest  possible  moment.  Deferred  investiga- 
tions not  infrequently  encounter  almost  insurmount- 
able obstacles.  As  a  general  proposition  in  claim  work 
evidence  is  more  readily  obtainable  within  a  reasonably 
short  space  of  time  following  the  occurrence  than  is  the 
case  after  several  weeks  or  even  months  have  elapsed. 
Time  heals  all  wounds  and  embellishes  all  facts.  A 
claimant  in  perspective  looking  backward  to  the  time 
of  the  accident  frequently  loses  sight  of  all  facts  damag- 
ing to  himself  and  sees  those  favorable  to  his  own 
interests  as  though  through  a  magnifying  glass. 

Prompt  investigations  do  not  necessarily  imply 
superficial  investigations,  nor  yet  snap  judgment  upon 
the  part  of  the  adjuster  with  respect  to  the  advisability 
of  opening  up  negotiations  for  disposing  of  the  claim. 
As  time  advances,  the  demands  of  claimants  invariably 
grow  apace;  witnesses  not  infrequently  remove  from 
the  jurisdiction,  and  some  even  drop  entirely  from 
sight;  others  in  time  are  subjected  to  mischievous 
influences,  while  subsequent  mishaps  or  occurrences  of 


THE  FACTS  OF  THE  OCCURRENCE  57 

one  character  or  another  occasionally  serve  to  change 
the  viewpoint  of  an  important  witness.  In  any  event, 
facts  usually  stand  forth  with  greater  clearness  and 
distinctness  in  one's  mind  immediately  after  an  occur- 
rence of  this  sort  than  is  ordinarily  the  case  at  a  later 
date. 

60.     Thorough  investigations. 

While  it  is  true,  of  course,  that  certain  types  of  ac- 
cidents require  but  little  investigation  aside  from  a 
proper  determination  of  the  extent  of  the  injuries 
involved,  and  of  the  probable  losses  sustained,  it  also  is 
true  that  other  types  require  the  most  painstaking 
investigation  in  order  that  the  full  facts  may  be  dis- 
closed. And  the  latter,  when  considered  in  the  aggre- 
gate, usually  constitute  the  major  portion  of  the  busi- 
ness of  the  average  department. 

There  is  always  a  certain  sense  of  satisfaction,  more 
especially  in  cases  involving  costly  adjustments,  in 
knowing  that  all  of  the  facts  were  fully  disclosed  before 
the  matter  reached  final  disposition.  Few  adjusters 
can  do  themselves  or  their  employers  justice  when  dis- 
cussing terms  upon  a  case  the  investigation  of  which 
they  realize  to  have  been  incomplete  and  unsatisfactory. 
Though  the  accomplishment  of  this  may  in  some  in- 
stances prove  most  difficiilt  or  even  impossible,  it 
nevertheless  is  but  reasonable  to  ask  that  an  honest 
effort,  at  least,  shall  have  been  made  to  ascertain  ac- 
curately all  of  the  essential  facts  of  a  case. 

The  additional  expense  entailed  by  the  thorough 
investigation  of  claims  is,  in  almost  every  instance, 
insignificant  when  compared  with  the  benefits  gained 
therefrom.  Not  only  is  the  legitimacy  of  the  honest 
claim  firmly  established  and  its  probable  value  approx- 
imated to  the  satisfaction  of  those  immediately  con- 


58  CLAIMS   FIXING   THEIR   VALUES 

cemed,  but  an  ever  alert  watch  is  maintained  against 
the  successfvil  prosecution  of  illegitimate  claims  for 
damages.  Especially  applicable  is  this  alike  to  the 
casual  malingerer  and  to  the  so-called  professional 
litigant.  Instances  without  niunber  may  be  cited 
wherein  the  fraudulent  intent  of  fictitious  claims  and 
suits  involving  large  sums  of  money  has  been  disclosed 
largely  because  of  the  thorough  methods  pursued  by 
the  companies  concerned  in  their  investigations. 

Good  business  principles  would  seem  to  demand 
that  adjusters  be  given  the  additional  assistance  and 
protection  afforded  by  reasonably  complete  and  thor- 
ough investigations. 

61.     Clean  investigations. 

In  the  transaction  of  business  of  this  character  upon 
an  extensive  scale,  more  especially  in  the  larger  cities, 
it  is  inevitable  that  the  representatives  of  a  depart- 
ment should  perforce  be  thrown  into  contact  from 
time  to  time  with  a  certain  stripe  of  claimants  whose 
every  act  seems  to  be  influenced  by  base  and  sordid 
motives. 

Occasionally  in  the  past,  in  isolated  cases  forttmately, 
investigators  and  adjusters  appear  to  have  formed  the 
mistaken  idea  that  in  order  successfully  to  uncover 
the  true  character  of  such  cases,  it  has  become  necessary 
that  they  should  lower  themselves  to  their  level.  In 
not  a  few  instances  the  ability  of  the  investigator  or 
adjuster  subsequently  to  distinguish  between  right  and 
wrong  in  the  conduct  of  his  employer's  affairs  became 
seriously  impaired  and  his  services  consequently  less 
desirable. 

Such  work  has  a  dank  and  imwholesome  atmosphere. 
It  has  none  of  the  strength  and  vigor  of  clean,  healthy 
claim  work.     No  official  possessed  of  a  proper  appre- 


THE  FACTS  OF  THE  OCCURRENCE  59 

elation  of  the  true  character  of  this  branch  of  rail- 
roading will  submit  himself,  nor  suffer  those  under  his 
supervision  to  submit  themselves  to  its  contaminating 
influences.  Nor  should  any  representative  of  his  own 
initiative  be  permitted  to  resort  to  tactics  which  event- 
ually may  reflect  upon  the  good  name  of  a  concern. 

Methods  which  are  faii*^  alike  to  claimant  and  to 
company  furnish  to  a  community  the  best  proof  of 
good  intentions.  Let  the  investigation  be  ever  so 
energetic,  thorough,  resourceful  and  persistent,  but 
above  all  else  let  it  be  fair,  clean  and  impartial. 


CHAPTER  VI 

PACTS   IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES 


62 

63 
64 

65 
66 
67 
68 
69 
70 

71 
72 

73 

74 
75 


What  diminishes  the  value  of  a  claim? 

Treatment  of  the  problem. 

Examples. 

Analysis  of  claimant's  condition  and  history. 

The  age  of  the  claimant. 

Difficulty  of  this  investigation. 

What  increases  the  value  of  a  claim? 

Dependence  of  others  on  claimant. 

Settlement  should  include  all  claims  for  the  injury. 

Statutes  of  limitation. 

Foreigners  residing  abroad. 

Sex  of  the  claimant.     Menopause  period. 

Pregnancy. 

Summary. 


62.     What  diminishes  the  value  of  a  claim? 

The  facts  considered  heretofore,  have  fallen  into  two 
broad  general  classes.  They  are  the  facts  bearing  upon 
the  happening  of  the  accident,  and  secondly,  the  facts 
bearing  upon  the  claimant's  injury.  We  must  now 
consider  those  subordinate  matters  that  affect  the 
value  of  the  claim,  either  in  diminishing  its  value,  or 
in  increasing  its  value.  Let  us  consider  first,  those 
factors  that  mitigate  damages  or  those  that  diminish 
damages.  The  existence  of  diseases  may  have  two 
effects  upon  the  value  of  a  claim.  They  may  form  the 
very  basis  of  the  claim,  for  the  previous  injury  or 
disease  may  have  been  aggravated  by  an  accident. 
On  the  other  hand,  they  may  form  an  important  factor 
in  diminishing  the  damages  where  they  affect  a  per- 
manent injury  by  diminishing  the  expectancy  of  life. 
Let  us  consider  first  those  that  diminish  the  value  of  a 

60 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES   6 1 

claim.  Suppose  that  the  claimant  has  been  struck  by 
an  automobile.  He  shows  permanent  injuries,  such 
as  total  loss  of  the  use  of  an  arm  or  leg.  The  value  of 
his  claim  is  based  upon  the  actual  loss  to  him  due  to 
his  inability  to  use  that  member.  If  he  has  lost  a 
hand  and  makes  his  living  by  writing  cards,  he  can  no 
longer  pursue  that  occupation.  Now  it  is  obvious  that 
if  he  were  able  to  make  $20.00  per  week  by  writing 
cards,  and  is  obliged  to  take  a  position  as  a  watchman, 
which  pays  him  $12.00  per  week,  that  his  earning  power 
has  been  permanently  injured  to  the  extent  of  $8.00 
per  week.  Suppose  the  claimant  is  but  30  years  of  age. 
Normally  he  would  have  a  claim  of  many  years  of  lost 
earning  power.  But  suppose  that  the  claimant  on 
physical  examination  is  found  to  be  affected  with 
tuberculosis  in  an  advanced  state  so  that  his  expectancy 
of  life  instead  of  being  the  normal  three  score  and  ten, 
is  no  greater  than  two  or  three  years.  It  will  be  seen  at 
once  that  instead  of  estimating  the  loss  of  earning  power 
at  the  rate  of  $8.00  per  week  for  30  or  40  years,  it  is  im- 
mediately cut  down  to  $8.00  per  week  for  3  or  4  years. 
This  is  a  broad  and  typical  example,  but  it  serves  the 
purpose.  Now  the  conditions  that  affect  the  claimant's 
longevity  are  as  varied  as  the  ills  that  mankind  is  heir 
to.  The  value  of  the  claim  may  be  affected  by  the 
existence  of  nervous  disorders,  by  the  existence  of 
cancer,  by  a  bad  family  history,  by  a  hernia,  by  alco- 
holism, by  advanced  age,  or  by  the  fact  that  the  claim- 
ant is  dependent  upon  others;  that  is  to  say,  that  he 
earns  almost  nothing  and  is  entirely  dependent  upon 
the  bounty  of  relatives  or  friends. 

63.     Treatment  of  the  problem. 

As  this  is  not  a  treatise  upon  medicine,  nor  even  upon 
medical  jurisprudence,  it  is  impossible  to  examine  all 


62  CLAIMS   FIXING   THEIR   VALUES 

of  the  ramifications  of  the  effects  of  particular  diseases. 
It  must  be  understood  that  even  one  with  the  most 
profound  knowledge  of  medical  science,  can  scarcely 
say  with  accuracy  that  a  claimant  is  certain  to  die,  even 
of  tuberculosis  in  one  or  two  or  three  years.  Where 
the  injury  is  one  that  certainly  would  shorten  the  life 
of  the  claimant,  but  is  not  of  so  immediate,  deadly,  a 
character  as  to  produce  great  ravages  in  a  short  time, 
the  problem  is  still  more  difficult.  The  claim  agent  or 
adjuster  of  claims  occupies  before  litigation  the  same 
position  practically  as  a  jury  does  in  litigation.  The 
claim  agent  is  expected  to  appraise  to  a  certain  degree 
of  accuracy  the  various  facts  that  determine  the  value 
of  the  claim.  For  that  reason,  although  definite 
information  is  extremely  difficult  to  give,  we  have 
'  attempted  here  to  render  as  definite  as  possible  some  of 
the  leading  principles  that  bear  upon  values.  As  has 
already  been  stated,  pain  and  suffering  are  not  com- 
modities that  are  marketable  and  yet  both  the  claim 
agent  and  the  jury  are  expected  to  say  arbitrarily  that 
so  much  pain  and  suffering  is  worth  so  much  money. 
Bearing  in  mind  that  the  law  gives  merely  compensation 
for  injuries,  no  more  or  no  less,  one  may  reach  a  more  or 
less  accurate  solution  of  the  value  of  any  claim,  how- 
ever difficult.  Suppose  that  a  claimant's  earning  power 
prior  to  an  accident  has  been  so  far  reduced  by  a  serious 
case  of  cancer  that  he  is  barely  able  to  live.  The 
disease,  cancer,  arid  the  claimant's  earning  power  are 
two  quantities  so  definitely  related  to  each  other  that 
the  one  fixes  the  value  of  the  other.  If  the  progress 
of  a  cancer  has  so  far  disabled  a  court  stenographer  that 
instead  of  receiving  his  former  salary  of  $3000.00  a 
year,  he  is  obliged  to  take  light  clerical  work  which 
pays  him  but  $1000.00,  his  basis  of  compensation  for 
injuries  received  must  be  foimd  in  his  decreased  earning 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES  63 

power  and  not  in  his  former  earning  power.  In  addi- 
tion to  this,  if  the  negligence  of  the  defendant  has  pro- 
duced in  the  claimant  a  permanent  injury,  the  damages 
are  still  further  mitigated  by  the  existence  of  the  cancer, 
because  of  the  probability  that  his  life  will  be  shortened, 
and  that  his  earning  power  will  veiy  likely  be  still 
further  decreased.  The  same  principles  apply  to  the 
other  illnesses  or  diseases  that  have  already  been 
mentioned.  A  bad  family  history,  or  a  hernia  may 
seriously  diminish  the  amount  that  should  be  paid  to 
the  claimant.  Such  factors  as  nervous  disorders  and 
alcoholism  are  more  or  less  subtle  and  difficult  to  esti- 
mate. But  there  is  always  the  possibility  that  one  or 
the  other  may  have  contributed  to  the  aggravated  con- 
dition in  which  the  claimant  finds  himself.  This  may 
be  illustrated  by  an  incident  from  an  actual  case. 

Case  I 

64.     Examples. 

Thomas  Btims,  the  claimant,  was  injured  by  a  fall 
from  an  electric  car  which  was  entering  a  switch. 
Burns,  as  the  car  violently  entered  the  switch,  was 
standing  upon  the  back  platform.  He  was  thrown  to 
the  street  and  struck  his  head.  His  hip  was  fractured. 
He  was  severely  bruised  and  he  sustained  severe 
internal  injuries.  He  was  picked  up  unconscious  and 
taken  to  a  hospital  where  he  remained  unconscious  and 
in  a  state  of  delirium  more  or  less  constantly  during 
three  months.  At  the  end  of  this  time  he  began  to 
mend,  and  in  the  course  of  some  seven  months  was 
discharged  from  the  hospital  and  was  able  for  a  space 
of  four  weeks  to  attend  to  the  same  duties  as  he  had 
performed  before.  At  the  end  of  this  time  however, 
his  physicians  noticed  and  the  claimant  himself  became 


64  CLAIMS   FIXING   THEIR  VALUES 

conscious  of  a  gradual  tightening  of  the  skin.  At  the 
end  of  three  months  more,  the  disease  that  had  taken 
hold  of  him  had  resulted  in  a  complete  loss  of  the  use 
of  his  members.  He  was  returned  to  the  hospital,  his 
condition  of  paralysis  daily  becoming  more  acute.  He 
soon  became  unable  to  move  any  of  his  limbs. 

65.     Analysis  of  claimant's  condition  and  history. 

In  the  case  under  discussion,  the  actual  negligence  of 
the  defendant  railway  company  was  difficult  to  prove. 
But  let  us  assimie  for  the  moment  that  negligence  could 
be  fastened  upon  the  railway  company,  and  attempt  to 
discover  the  various  facts  that  affected  the  value  of 
Bums's  claim.  The  seriousness  of  his  condition  was 
beyond  dispute.  An  investigation  of  the  history  of 
the  claimant  disclosed  many  factors  of  importance  in 
appraising  this  claim.  Burns  at  the  time  of  the  acci- 
dent was  forty-five  years  old.  He  had  been  a  hard 
drinker  all  of  his  life  and  was  frequently  intoxicated. 
He  was  a  man  of  considerable  ability  and  yet  had 
drifted  lower  and  lower  in  the  social  scale  and  in  earn- 
ing power  until  he  had  difficulty  in  securing  $15.00  per 
week.  He  consiuned  large  quantities  of  whiskey  daily. 
At  the  time  of  the  accident  he  was  somewhat  under  the 
influence  of  liquor.  Now,  assuming  that  a  perfectly 
healthy  man  had  met  with  so  severe  an  accident,  we  are 
boimd  to  investigate  as  far  as  it  is  possible  to  what 
extent  his  injuries  would  have  resulted  under  such 
conditions  as  the  one  under  discussion.  That  the  most 
healthful  person  would  have  been  injured  and  seriously 
injured,  is  beyond  doubt.  That  a  perfectly  normal 
person  after  having  recovered  from  these  injuries  would 
have  been  affected  as  the  claimant  was,  is  a  matter 
that  can  scarcely  be  determined.  The  disease  from 
which  Biuns  suffered,  it  happened,  was  a  very  myster- 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES  65 

ious  one,  of  which  medical  science  records  but  few  in- 
stances. It  was  proved  that  two  cases  were  on  record 
in  which  the  condition  might  have  been  attributed  to 
hard  drinking  on  the  part  of  the  patient.  There  were 
several  instances  in  which  the  same  condition  had  been 
produced  as  a  result  of  some  typical  railway  accident. 
Here  are  two  conflicting  possibilities  that  the  claim 
agent  has  to  solve  as  best  he  can.  Of  this  much,  we  are 
certain :  if  the  case  were  handled  properly,  and  Burns's 
counsel  could  prove  negligence  on  the  part  of  the  rail- 
way defendant,  he  would  then  have  the  problem  of 
presenting  to  the  jury  these  two  possibilities.  Either 
that  the  very  serious  permanent  injuries  might  possibly 
be  the  result  of  the  accident  or  that  they  might  be  due 
to  the  claimant's  previous  history.  In  all  probability, 
a  jury  would  steer  a  middle  course.  It  might  not  give 
Bums  all  that  he  asked  for.  It  would  beyond  per- 
adventure  give  him  something  and  very  likely  an  ex- 
tremely large  verdict.  This  is  as  good  an  instance  as 
could  be  desired,  of  the  manner  in  which  alcoholism  or 
family  history  might  play  a  considerable  part  in  miti- 
gating the  damages  to  be  paid  to  the  claimant. 

66.     The  age  of  the  claimant. 

The  age  of  the  claimant  is  in  all  cases  a  very  import- 
ant factor,  both  as  affecting  his  earning  power  and  as 
affecting  the  seriousness  of  his  injuries.  It  is  also  of 
importance  in  determining  in  a  case  of  permanent  in- 
juries the  length  of  time  during  which  his  loss  will  con- 
tinue and  for  which  he  should  be  compensated.  These 
are  items  that  may  be  calculated  mathematically.  If 
a  man  might  live  thirty  years  and  earn  $30.00  per  week 
his  loss  is  30  times  $1440.  If,  on  the  other  hand,  he  is 
fifty-five,  or  sixty  years  of  age,  his  expectancy  of  life 
may  be  reduced  possibly  to  ten  years,  in  which  case  the 
5 


66  CLAIMS   FIXING  THEIR   VALUES 

multiplication  instead  of  being  by  thirty,  is  by  ten.  It 
must  be  imderstood  that  one  of  the  great  factors  in 
determining  how  great  a  loss  a  claimant  has  suffered,  is 
the  loss  of  earning  power,  and  this  factor  is  more  largely 
modified  by  diseased  conditions  than  by  anything  else. 
It  has  been  said  many  times  already  in  the  course  of 
this  work  that  the  basis  of  the  claimant's  right  to  com- 
pensation is  his  loss.  He  is  to  be  made  whole  for  the 
loss  that  he  has  suffered.  One  of  these  losses  and  an 
important  item  in  determining  the  loss,  is  the  claimant's 
earning  power.  Now,  if  the  claimant  has  not  any 
earning  power,  one  of  the  items  of  compensation  is 
eliminated.  Suppose  that  the  claimant  is  fifty  years 
of  age,  and  so  feeble  that  he  is  dependent  upon  his 
children  for  support.  To  make  the  case  stroiiger, 
suppose  that  he  is  unable  to  render  any  services  at  all 
by  which  he  might  contribute  to  his  own  maintenance. 
In  that  event,  he  has  no  earning  power  and  if  he  is 
injured  through  negligence,  he  can  make  no  claim  based 
upon  his  earning  power. 

67.     Difficulty  of  this  investigation. 

We  must  leave  the  discussion  at  this  point  with  the 
thought  that  the  factors  that  we  have  just  been  con- 
sidering are  the  most  difficult  to  consider  that  the  claim 
agent  can  be  faced  with.  Many  of  the  facts  will  be 
hard  to  discover  and  it  is  only  by  patient  and  careful 
investigation  that  all  of  the  factors  that  may  either  in- 
crease or  diminish  the  value  of  the  claimant's  demand 
can  be  properly  estimated.  The  order  of  investigation 
so  far  as  we  have  gone  is  this.  First,  is  the  defendant 
liable?  Second,  what  is  the  nature  and  extent  of  the 
claimant's  injuries?  Third,  what  are  the  circumstances 
that  may  reduce  the  claimant's  demand? 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES  67 

68.     What  increases  the  value  of  a  claim? 

Let  us  now  consider  the  facts  and  circumstances  that 
may  enhance  or  increase  the  claimant's  right  to  com- 
pensation. 

The  factors  that  tend  to  decrease  a  claimant's  com- 
pensation are  in  many  instances  those  that  increase  it. 
They  are  often  merely  the  same  question  looked  at 
from  a  different  point  of  view.  When  a  claimant  has 
been  hurt  and  the  question  is,  to  how  much  his  injury 
entitles  him,  one  of  the  principal  questions  bearing 
upon  the  amount  that  he  should  receive  is  his  occupa- 
tion. The  reason  for  this  is,  that  individuals,  like 
commodities,  have  varying  values.  A  person  who 
can  earn  $100,000  a  year  has  an  annual  value  of 
$100,000.00  and  the  interruption  of  his  activity  by  an 
accident  produces  a  loss  proportionate  to  the  amount 
he  could  earn  if  he  were  not  hurt.  Fortimately  for  the 
claim  agent,  the  number  who  can  earn  $100,000  per 
year  is  very  limited.  The  simis  representing  earning 
power  in  the  ordinary  accident  case  vary  between  $5.00 
and  $25.00  per  week.  They  may  exceed  this  amount 
to  any  extent,  but  this  is  unusual.  The  plaintiff's 
attorney  in  proving  to  the  jury  what  his  loss  is,  insists 
very  largely  upon  the  amount  that  the  plaintiff  or 
claimant  could  have  gained.  It  does  not  require  any 
great  perspicacity  to  understand  that  where  the  injuries 
are  permanent  the  occupation  of  the  claimant  is  a  very 
serious  factor  in  determining  the  value  of  the  claim. 

In  adjusting  a  claim  for  permanent  injuries,  the 
occupation  of  the  claimant  and  his  age  are  directly 
related  to  each  other,  because  the  loss  of  the  claimant  is 
estimated  by  multiplying  his  expectancy  of  life  by  the 
amount  he  could  have  earned  if  his  earning  power  had 
continued  unintenupted.  It  is  necessary  to  consider 
first  his  occupation.     If  he  is  a  bricklayer,  the  amount 


/ 


68  CLAIMS   FIXING   THEIR   VALUES 

that  he  can  average  per  year  is  perfectly  definite  and 
easy  to  ascertain.  The  same  is  true  of  other  occupations 
and  professions.  The  earning  power  is  determined  by 
the  class  of  profession  or  trade.  Naturally  the  earning 
power  of  a  professional  man,  a  successful  physician  or 
person  in  like  circumstances,  is  greater  than  that  of  the 
ordinary  laborer,  and  his  loss  is  measured  accordingly. 
It  will  be  seen  from  the  remarks  that  have  already  been 
made,  that  the  distinction  between  peiinanent  and 
temporary  injuries  is  an  important  one.  If  the  loss  of 
earning  power  continues  for  only  a  year,  the  damages 
are  measured  accordingly.  If  the  loss  of  earning  power 
will  continue  throughout  the  claimant's  life,  whatever 
sum  is  taken  as  representing  his  earning  power  per 
week  or  per  month,  must  be  multiplied  by  his  expect- 
ancy of  life.  This  expectancy  of  life  is  determined  by 
means  of  a  series  of  tables,  known  as  the  Carlisle  Tables, 
which  show  how  long  an  average  person  ought  to  live 
under  normal  circiunstances.  And  as  the  Carlisle 
tables  are  based  upon  an  elaborate  computation  of 
mortality  rates  of  average  persons  in  all  walks  in  life, 
and  not  from  the  average  length  of  life  in  a  particular 
calling,  they  are  generally  accepted  as  representing  with 
more  or  less  accuracy  the  expectancy  of  life  at  any 
given  age.  This  length  of  life  of  the  average  person 
may  be  diminished  or  increased  by  circumstances.  It 
will  be  nattual  to  suppose  for  example  that  a  person 
who  is  in  an  advanced  stage  of  tuberculosis  will  not  live 
as  long  as  a  perfectly  healthy  person  of  the  same  age. 
The  principle  is  the  same  whatever  the  disease  to 
which  the  claimant  may  be  subject.  Each  affects  the 
length  of  life  to  a  greater  or  less  extent. 

69.     Dependence  of  others  on  claimant. 

An  important  factor  to  be  considered  as  bearing  upon 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES  69 

the  value  of  the  claim,  is  whether  or  not  there  is  any- 
one dependent  on  the  claimant.  This  is  an  important 
inquiry  for  the  following  reasons:  Where  a  man  or 
woman  claiming  damages  for  an  injury,  is  unmarried, 
whatever  right  he  may  have  to  compensation  is  peculiar 
or  personal  to  himself.  There  is  not  the  question  of 
taking  care  of  a  family  to  be  considered.  On  the  other 
hand,  if  the  claimant  were  married  or  is  the  sole  support 
of  a  mother  or  father  or  other  person  dependent  upon 
him  or  her,  the  right  of  action  may  be  twofold  or  three- 
fold. That  is,  there  may  be  two  or  three  persons  in- 
jured by  the  destruction  of  the  claimant's  earning 
power.  For  example,  there  is  a  right  of  action,  that  is 
to  say,  a  right  to  sue,  belonging  to  the  wife  of  the  claim- 
ant and  to  his  children,  although  in  many  states  by 
statutes,  this  right  of  action  must  be  exercised  in  a 
single  suit.  A  husband  has  likewise  a  right  of  action 
based  upon  the  value  of  his  wife's  services  to  himself, 
so  that  the  dependence  of  others  upon  the  claimant, 
constitutes  an  important  question  that  must  be  thor- 
oughly investigated  by  the  claim  agent  or  adjuster. 

70.     Settlement  should  include  all  claims  for  the  injury. 

It  is  not  to  be  supposed  that  this  is  merely  an  aca- 
demic discussion  of  possible  matters  that  may  come  to 
an  investigator's  attention.  It  frequently  happens  that 
there  are  three  claims  arising  from  a  single  injury  and 
that  an  adjuster  fancying  that  he  has  included  all  in  one 
settlement,  has  taken  a  release  from  only  one  of  the 
parties,  for  example,  from  the  person  injured,  or  from 
the  wife  of  the  person  injured.  A  case  in  point  was 
like  this.  Henr>^  Robinson  was  driving  a  horse  and 
carriage  along  Main  Street  about  dusk  in  an  entirely 
proper  manner  and  upon  the  right  side.  When  he 
was   midway   between   Thiid  and  Fourth  Streets,  an 


70  CLAIMS   FIXING   THEIR   VALUES 

automobile  dashed  from  the  opposite  side  of  the  street 
and  crashed  into  Robinson  and  his  team.  Robinson 
was  hurt  somewhat  seriously,  and  presented  a  claim 
for  damages,  which  the  agent  of  a  casualty  company 
promptly  adjusted,  and  went  to  his  slumbers  fancying 
that  the  incident  was  closed.  It  happened,  however, 
that  in  the  case  under  discussion  Robinson  was  driving 
a  team  for  his  employer,  who  was  the  owner  of  the  horse 
and  carriage.  The  claim  agent  consequently  received 
a  demand  from  an  attorney  within  a  few  days  making 
a  claim  for  the  injuries  to  the  horse  and  for  the  value 
of  the  carriage  which  was  destroyed.  The  question 
here  is  not  that  the  claim  agent  might  have  killed  two 
birds  with  one  stone,  or  that  he  might  have  prevented 
the  owner  of  the  horse  and  carriage  from  recovering 
what  was  rightly  due  to  him.  As  a  matter  of  fact, 
both  settlements  were  extremely  reasonable.  But  the 
situation  could  have  been  as  serious  as  any  one  chooses 
to  imagine  it. 

One  might  settle  on  a  basis  intended  to  cover  all 
possible  injuries  and  losses,  and  find  that  he  had  only 
settled  with  one  of  five  possible  plaintiffs.  It  is,  there- 
fore, wise  to  be  fully  acquainted  with  the  various 
statutes  that  give  a  right  of  action  for  injury  to  a 
particular  individual.  We  can  indicate  these  matters 
but  briefly.  Normally,  the  wife  may  sue  for  injuries  to 
the  husband  or  for  his  death,  and  conversely,  the  hus- 
band may  sue  for  injuries  to  the  wife,  or  for  her  death. 
Likewise,  children  may  sue  for  the  death  or  injury  of  a 
parent,  and  a  parent  may  sue  for  the  death  or  in- 
jury of  his  children.  In  the  case  of  very  young  chil- 
dren there  is  an  additional  complication  introduced  by 
way  of  imputing  to  parents  contributory  negligence 
for  permitting  infants  of  tender  years  to  run  at  large 
where  they  may  unwittingly  stray  into  danger.     In 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES   7 1 

the  same  way,  by  statutes,  other  persons  who  are  de- 
pendent upon  the  person  injured  or  killed  through 
negligence  have  a  right  of  action  based  upon  the  loss 
to  themselves,  and  it  must  be  understood  in  this  case 
that  one  who  is  suing  for  his  own  pecuniary  loss  due  to 
an  injury  to  someone  else,  recovers  the  exact  amount 
that  he  has  lost,  and  not  the  pain  and  suffering  to 
which  the  other  person  has  been  put,  as  that  is  a  right 
peculiar  to  the  other  person.  Again,  the  right  of 
action  for  injuries  to  an  individual  survives  his  death, 
and  belongs  to  his  executors,  or  administrator.  In 
other  words,  the  estate  of  a  person  who  has  been  killed, 
if  he  has  no  wife  or  children,  has  just  the  same  right  to 
recover  as  the  deceased  would  have  had  if  he  had  lived. 

71.  Statutes  of  limitation. 

In  this  connection,  we  must  give  some  consideration 
to  what  are  known  as  statutes  of  limitation.  These 
statutes  mean  that  a  person  who  has  been  injured, 
must  bring  suit  to  enforce  his  claim  for  damages  within 
a  limited  period.  This  period  varies  in  different  parts 
of  our  country.  A  typical  case  may  be  taken.  In  one 
of  the  western  states,  an  action  to  recover  for  the  death 
of  a  person,  due  to  the  negligence  of  the  defendant  must 
be  brought  within  one  year  after  death.  A  person  who 
has  been  injured  because  of  negligence  must  bring  his 
action  within  two  years.  For  specific  information  in 
any  particular  jurisdiction,  the  reader  is  referred  to  the 
statutes  in  the  various  compilations,  revisions,  and 
digests  of  the  various  states. 

72.  Foreigners  residing  abroad. 

Another  peculiarity  in  factors  that  help  to  determine 
the  value  of  a  claim  lies  in  the  fact  that  in  many  states 
foreigners  residing  abroad  cannot  recover  damages  for 


72  CLAIMS    FIXING   THEIR  VALUES 

the  death  of  other  relatives  or  members  of  their  family 
by  negligence  in  this  country. 

73.  Sex  of  the  claimant.     Menopause  period. 

The  value  of  claims  presented  by  females  is  dependent 
also  upon  the  consideration  of  facts  that  are  due  to  the 
sex  of  the  claimant.  One  of  the  most  important  of 
these  is  injury  to  a  woman  during  the  menopause 
period.  Because  of  the  various  dangers  that  beset 
women  during  this  time,  the  estimate  of  damages  aris- 
ing from  a  hurt  under  such  conditions,  is  extremely 
complicated  and  difficult.  In  the  case  of  permanent 
injuries,  the  same  tests  may  be  followed  here  as  in 
cases  where  the  condition  is  used  as  a  means  to  mitigate 
damages.  Permanent  injury  may  sometimes  be  attrib- 
uted to  the  fact  that  the  woman  at  the  time  of  her 
injuries  was  in  this  critical  condition,  or  might  have 
developed  permanent  injuries,  irrespective  of  the  acci- 
dent. On  the  other  hand,  there  is  equally  the  possi- 
bility that  the  woman's  health  might  have  continued 
unimpaired  and  might  have  suffered  no  ill  effects 
whatever  from  her  condition  had  it  not  been  for  the 
accident.  In  such  questions  as  this  the  estimate  of  the 
damage  done  must  be  based  in  a  large  part  on  medical 
testimony.  The  purpose  of  this  chapter  has  been 
served,  which  is  to  call  attention  to  this  matter  as  a 
fact  that  may  have  some  bearing  upon  the  value  of 
the  claim. 

74.  Pregnancy. 

Again,  an  injury  to  a  woman  may  occur  during  preg- 
nancy. It  goes  without  saying  that  injuries  under  such 
conditions  are  in  the  highest  degree  dangerous.  The 
condition  itself  is  one  that  can  readily  be  made  the 
basis  of  fraud,  and  it  is  likewise  one  in  which  most  of 


FACTS  IN  MITIGATION  OR  ENHANCEMENT  OF  DAMAGES   73 

the  facts  are  dependent  entirely  upon  careful  medical 

testimony. 

75.     Summary.  « 

Let  us  now  summarize  briefly  the  results  of  our  ob- 
servations under  the  head  of  mitigation  or  enhance- 
ment of  damages.  Recalling  again  that  the  basis  of 
recover}'-  of  anyone  who  presents  a  claim  for  injuries  to 
himself  or  to  another,  is  compensation  for  the  loss 
sustained,  we  can  see  readily  enough  that  the  gross  loss 
to  the  claimant  is  the  total  amount  of  damage  that  he 
can  prove.  Adding  all  of  the  factors  that  make  up 
this  loss,  and  setting  them  on  one  side  of  the  account, 
we  should  then  add  on  the  other  side  all  of  the  facts  and 
circumstances  that  tend  to  diminish  this  loss,  such  as 
the  existence  of  diseases,  the  existence  of  a  condition 
that  might  have  produced  the  claimant's  present  state, 
the  advanced  age  of  the  claimant,  his  lack  of  earning 
power,  and  taking  the  sum  of  all  these,  we  may  sub- 
tract them  from  the  total  loss  in  order  to  get  at  the  net 
loss  to  the  claimant.  On  the  other  hand,  certain  facts 
tend  to  enhance  the  value  of  a  claim  beyond  the  amount 
at  which  it  would  normally  be  appraised.  These  are, 
we  have  seen,  the  unusually  lucrative  occupation  of  the 
claimant,  his  great  earning  power,  the  dependence  of 
others  upon  the  claimant,  by  which  the  injury  may  be 
not  to  the  claimant  alone,  but  to  several  others  beside 
himself.  In  addition  to  this,  the  claim  may  be  enhanced 
in  the  case  of  female  claimants  by  the  fact  that  they  are 
passing  through  the  critical  periods  either  of  meno- 
pause or  pregnancy.  Therefore,  we  add  to  our  order 
of  investigation,  i.  Is  the  defendant  liable?  2.  What 
is  the  nature  and  extent  of  the  claimant's  injuries?  3. 
What  are  the  circumstances  that  may  reduce  the  claim- 
ant's demand?  4.  What  are  the  circumstances  that 
may  increase  the  claimant's  demand? 


CHAPTER  VII 

FACTS  INFLUENCING  QUESTIONS  OF  SETTLEMENT 

76.  Subordinate  factors  aflEecting  the  value  of  a  claim. 

77.  Personality  of  opponents. 

78.  Claimant's  counsel. 

79.  Policy  of  the  company.     The  public. 

80.  Injured  employees.     Their  legal  rights. 

81.  Law  of  employer's  liability. 

82.  Common  law  liability  of  employers. 

83.  Common  law  liability  of  employers.     General  principles. 

84.  Negligence  as  to  young  or  inexperienced  servants. 

85.  Duties  of  the  employer. 

86.  Effect  of  entrusting  duty  to  others. 

87.  What  kind  of  appliances  must  the  employer  furnish? 

88.  Fellow  servant  doctrines. 

89.  Fellow  servants,  those  engaged  in  common  employment. 

90.  What  is  not  a  common  employment? 

91.  Association  as  a  test  of  common  employment. 

92.  Specific  instances  of  common  employment. 

93.  Risks  which  the  servant  is  considered  to  have  assumed. 

94.  Modification  of  common  law  liability.     Employer's  liability 

acts. 

95.  Discussion  of  employer's  liability  in  the  United  States. 

96.  Employer's  liability  acts  in  force  in  the  United  States. 

76.  Subordinate  factors  affecting  the  value  of  a  claim. 

We  have  considered  in  a  general  way  most  of  the 
actual  questions  and  circumstances  surrounding  the 
happening  of  an  injury  and  the  subsequent  condition 
of  the  claimant.  Let  us  now  proceed  to  examine  some 
of  the  vaguer  forces  that  play  a  more  or  less  important 
part  in  determining  the  value  of  a  claim. 

77.  Personality  of  opponents. 

One  of  the  first  questions  with  which  the  investigator 
is  confronted  when  a  claim  has  been  presented  to  him 
for  adjustment  is  the  personality  of  his  various  oppo- 

74 


FACTS   INFLUENCING   QUESTIONS   OF   SETTLEMENT       75 

nents.  These  are  principally  three,  the  claimant  him- 
self, the  claimant's  physician,  and  the  claimant's  counsel. 
In  the  first  place,  assuming  that  from  the  moment  the 
claim  is  presented  there  is  every  reason  to  believe  in  the 
good  intentions  of  all  parties  concerned,  obviously,  the 
need  of  being  constantly  on  one's  guard  against  fraud,  at 
least,  is  remote.  Certain  facts,  however,  tend  to  con- 
firm us  in  the  belief  that  one  party  or  the  other  is  or  is 
not  playing  fair.  If  the  attitude  of  the  attending 
physician  from  the  first  is  that  damages  must  be 
awarded  to  his  patient,  and  if  in  addition  to  that,  he 
presents  an  excessive  or  apparently  excessive  charge 
for  medical  services  rendered,  there  is  reason  for  sus- 
pecting that  he  is  interested  in  seeing  that  the  claim- 
ant is  paid.  In  that  event,  all  facts  stated  by  him 
have  to  be  checked  up  very  carefully. 

78.    Claimant's  counsel. 

The  same  circumstances  must  be  considered  also  in 
connection  with  the  reputation,  character,  and  ability 
of  the  claimant's  counsel.  While  it  is  never  fair  and 
never  honest  to  take  advantage  of  the  mediocre  abilities 
of  one's  opponents  for  the  piirpose  of  preventing  them 
from  getting  what  is  justly  due,  there  are  many  cases  so 
close  to  the  line  that  payment  or  non-payment  is  not 
in  the  realm  of  legal  redress,  but  is  rather  a  matter  of 
economics  or  of  humanity.  It  must  be  understood 
that  a  person's  wound  is  no  less  grievous  and  hurts  him 
no  less  if  he  himself  has  been  the  principal  factor  in 
producing  his  injuries.  But,  however  grievous  his 
hurt,  the  question  of  whether  an  innocent  party,  such 
as  the  owner  of  the  car  from  which  he  deliberately 
threw  himself  shall  pay  him  compensation  for  his  hurts, 
is  entirely  a  matter  of  the  humanity  and  good  nature  of 
the  defendant.     Cases  upon  the  border  line  even  of 


76  CLAIMS    FIXING   THEIR   VALUES 

humanity  may  be  influenced  so  far  as  their  settlement 
is  concerned  by  the  counsel  retained  by  the  claimant. 
The  ability  of  counsel  may  make  a  doubtful  case  a 
good  one.  An  argument  well  presented  may  seemingly 
change  the  law  from  non-liability  to  liability.  So  that 
the  reputation,  character,  and  ability  of  the  claimant's 
coimsel  play  an  extremely  important  part  in  determin- 
ing the  question  of  settlement  or  no  settlement.  Again 
if  the  damages  asked  by  either  of  the  parties,  the  claim- 
ant or  his  counsel,  are  grossly  excessive  either  in  view 
of  the  liability  or  in  view  of  the  injury  sustained,  an 
intention  is  shown  to  make  as  much  profit  or  capital 
out  of  the  claimant's  injuries  as  the  circumstances  will 
permit.  In  which  event  the  claim  will  probably  be 
disregarded  altogether  or  will  be  scrutinized  with  the 
greatest  care. 

79.  Policy  of  the  company.     The  public. 

We  must  consider  here  also  the  general  policy  of  the 
company  itself  toward  the  public.  There  are  some- 
times certain  circumstances  that  impel  a  company  to 
do  all  in  its  power,  even  at  the  expense  of  settling  doubt- 
ful claims,  to  avoid  litigation.  Where  these  are  the 
circumstances,  there  are  periods  when  the  utmost 
leniency  is  displayed  in  the  payment  of  claims.  Vice 
versa,  in  times  of  financial  stress,  when  a  company  is 
constantly  harassed  by  expensive  litigation,  or  for 
other  reasons,  claims  are  scrutinized  with  the  utmost 
rigor,  and  the  rule  is  often  stated  in  the  formula  "con- 
test rather  than  pay." 

80.  Injured  employees.     Their  legal  rights. 

Some  mention  has  been  made  of  the  difference  be- 
tween liability  toward  a  servant  or  employee  who  has 
been  injured  at  his  work  and  that  of  a  stranger  or 
casual  member  of  the  public.     It  will  be  recalled  that  as 


FACTS   INFLUENCING   QUESTIONS   OF   SETTLEMENT       77 

a  general  rule  the  position  of  the  employee  is  not  so 
favorable  when  he  asks  compensation  for  injuries  re- 
ceived at  his  work  as  is  that  of  a  third  person,  the 
reason  for  this  being  that  he  is  supposed  to  have 
assumed  certain  of  the  dangers  when  he  accepted  his 
position  at  a  given  salary  or  wage.  Naturally,  this  does 
not  impress  the  great  body  of  workers  as  an  entirely 
fair  proposition  and  agitation  has  been  going  on  for 
nearly  a  century  with  a  view  to  eliminating  this  con- 
dition. The  initiative  is  in  many  cases  taken  by  the 
employing  company  itself  or  by  the  employing  indi- 
vidual himself.  A  sliding  scale  of  compensation  is 
sometimes  adopted  which  is  given  to  any  workman 
injured,  regardless  of  whether  he  contributed  to  the 
injury  or  not.  Again,  companies  frequently  pay  the 
salary  of  an  injured  employee  while  he  is  recovering 
from  his  injuries,  and  all  or  a  part  of  his  doctor's  bill. 
This  brings  us  to  a  consideration  of  the  legal  questions 
bearing  upon  the  value  of  a  claim  when  the  person  hurt 
is  an  employee.  To  do  this,  we  shall  have  to  discuss 
somewhat  fully  the  general  principles  that  define  the 
liability  of  an  employer  when  his  employee  is  hurt. 
Let  us  understand  first  of  all  that  there  are  some 
jurisdictions  or  states  in  which  the  employer  is  bound 
only  by  what  is  known  as  common  law  liability. 
Under  this  system  of  liability,  what  is  known  as  the 
fellow  servant  doctrine  or  rule,  applies,  with  slight 
modification. 

81.     Law  of  employer's  liability. 

In  a  second  class  of  cases,  the  employee  when  injured 
is  entitled  to  compensation  regardless  of  whether  his 
injury  is  due  to  the  act  of  a  fellow  servant  or  not,  but 
not  where  he  has  been  hurt  either  because  of  a  pure 
accident  due  to  no  one's  negligence,  or  because  of  his  own 


78  CLAIMS   FIXING   THEIR   VALUES 

contributory  negligence.  In  a  third  class  of  cases,  an 
employee  who  is  hurt  in  the  course  of  his  employment 
is  entitled  to  some  payment  no  matter  how  he  got  hurt. 
While  this  last  state  of  affairs  is  the  aim  toward  which 
most  groups  of  working  men  strive,  it  is  almost  im- 
possible that  such  a  favorable  doctrine  could  obtain 
fully  in  the  United  States  because  of  certain  pro- 
hibitions in  the  Constitution,  so  that  the  last  class  of 
cases  mentioned  happen  only  in  England  and  on  the 
Continent. 

82.     Common  law  liability  of  employers. 

Let  us  consider  now  those  cases  in  which  the  legal 
responsibility  of  the  employer  is  only  what  is  known  as 
the  common  law  liability.  At  the  common  law,  an 
employer  is  liable  to  his  employee  who  is  hurt  while 
working  for  him,  only  in  certain  limited  cases.  In  the 
first  place,  the  parties,  the  employer  and  the  em- 
ployee, may  agree  before  hand  upon  the  liability  of 
each  in  case  of  injury.  The  right  of  action  of  the  em- 
ployee then  would  depend  upon  his  contract  if  he  were 
injured.  The  general  principle  is,  that  where  there  is 
no  agreement,  the  employer  can  be  held  liable  to  his 
employee  only  for  injuries  directly  produced  by  himself. 
For  the  injuries  that  an  employee  may  sustain  are  of 
four  kinds.  First,  from  the  nature  of  the  employment. 
Second,  from  negligence  of  the  master.  Third,  from 
negligence  of  a  fellow  servant.  Fourth,  from  negligence 
of  some  third  person.  If  an  employee  is  injured  merely 
from  one  of  the  dangers  incident  to  the  calling  that  he 
has  undertaken,  he  must  bear  the  loss  himself,  for  he 
is  taken  to  have  assumed  this  risk  when  he  accepted 
his  position.  If  a  third  person  injures  an  employee, 
the  third  person  being  the  one  who  has  done  the  wrong, 
is  the  sole  person  responsible.     Such  an  incident  would 


FACTS   INFLUENCING    QUESTIONS    OF    SETTLEMENT        79 

be  where  an  unruly  passenger  threw  a  conductor  from  a 
car  and  injured  him.  The  conductor  in  such  a  case 
might  claim  damages  from  the  person  who  threw  him 
from  the  car,  but  not  from  his  employer.  If  a  motor- 
man  of  a  car  produces  injury  to  the  conductor,  this  is 
an  act  of  a  fellow  servant  and  the  employer  at  common 
law  cannot  be  held  liable.  The  extent  of  the  employer's 
liability  then  is  measured  entirely  by  his  own  negli- 
gence or  want  of  care.  The  facts  that  show  want  of  care 
may  be  summarized  very  briefly  for  the  present  pur- 
pose. The  employer  is  bound  to  provide  his  employee 
with  a  safe  place  in  which  to  work.  He  is  bound  to 
provide  him  with  tools  and  machinery  which  are  up  to 
the  ordinary  modem  standard  of  efficiency.  He  is  not 
bound  to  provide  the  very  best,  but  only  what  is  the 
ordinary  usage  in  that  particular  employment.  He 
must  select  his  servants  with  skill  and  care.  For  ex- 
ample, if  an  electric  railway  company  selected  a  motor- 
man  who  was  notoriously  drunken  and  reckless,  a 
conductor  injured  by  an  act  of  such  a  motorman  could 
recover  against  the  railway  company.  The  employer 
also  must  see  that  his  servants  and  employees  are  not 
exposed  to  unnecessary  dangers.  This  practically  is 
the  extent  of  the  employer's  liability  at  common  law. 
Let  us  examine  the  doctrine  with  somewhat  more  detail. 

83.     Common  law  liability  of  employers.     General  principles. 

The  only  instance  in  which  an  employee  stands  in  as 
favorable  a  position  toward  his  master  or  employer  if 
hurt,  as  a  third  person,  is  where  the  master  has  person- 
ally done  the  act  resulting  in  injury  to  the  employee. 
Ordinarily,  the  employee  of  a  railroad  has  not  the  same 
right  to  recover  for  injuries  to  himself  as  a  passenger 
would  have.  The  test  of  the  master's  liability  is  his 
negligence,  not  any  possible  dangers  that  the  employ- 


8o  CLAIMS   FIXING   THEIR   VALUES 

ment  itself  may  involve.  Now,  as  to  the  extent  of  the 
master's  liability,  he  is  expected  to  be  a  normal  and 
reasonable  person.  He  is  not  held  to  the  highest  care 
nor  is  he  bound  to  insure  his  employees  from  harm.  He 
is  only  held  to  the  exercise  of  reasonable  care  in  looking 
after  the  safety  of  his  employees.  The  duty  of  the 
master  is  to  use  reasonable  care  to  prevent  accident  or 
injury  to  his  workmen.  It  is  failure  in  this  duty  that 
will  make  the  employer  liable.  This  much  may  be 
asserted  as  a  test,  that  the  employer's  duty  toward  his 
servant  is  summed  up  in  the  phrase,  "reasonable  care." 
This,  it  must  be  understood,  is  a  shifting  and  flexible 
phrase.  What  is  reasonable  care  toward  men  em- 
ployed in  delivering  spring  water  might  be  the  grossest 
negligence  toward  men  employed  to  transport  dynamite 
or  nitroglycerine.  The  meaning  of  this  is  so  obvious 
that  it  need  not  be  dwelt  upon.  A  peculiar  instance 
of  what  may  be  involved  in  the  employer's  duty  to 
protect  his  servant  is  the  following : 

A  railroad  company  sent  an  employee  to  make  some 
repairs  on  the  line  of  its  road,  a  distance  of  some  nine 
miles,  in  extreme  cold  weather.  The  railroad  company 
was  aware  that  the  employee  was  not  properly  clad,  nor 
provided  with  food  for  exposure  to  extreme  weather, 
and  that  the  employee  expected  to  be  sent  for  at  the 
conclusion  of  his  day's  work.  The  company  failed  to  do 
so,  and  the  employee,  in  walking  several  miles  to  a  vil- 
lage, suffered  permanent  injuries  from  exposure  to  the 
cold.  This  was  considered  a  failure  on  the  part  of  the 
railroad  company  of  its  duty  to  protect  its  servant  and 
it  was  held  liable  as  for  negligence. 

84.     Negligence  as  to  young  or  inexperienced  servants. 

It  has  already  been  suggested  that  the  words, 
"reasonable  care"  may  mean  a  much  higher  responsi- 


FACTS    INFLUENCING    QUESTIONS    OF    SETTLEMENT        8 1 

bility  in  a  case  involving  known  dangers  than  in  a  case 
where  the  dangers  are  slight,  and  the  responsibility  of 
the  employer  in  a  case  of  this  character  begins  with  the 
hiring  of  the  servant  or  employee.  If  a  master  hires  for 
dangerous  work,  for  example,  on  a  railroad  or  near  a 
blast  furnace,  either  a  very  young  or  very  inexperienced 
person,  he  renders  himself  liable  for  anything  that  may 
happen  to  the  minor  or  inexperienced  person.  In  the 
case  of  minors,  the  contract  of  employment  should  be 
made  with  the  parents.  The  test  of  liability  where 
minors  are  employed  for  dangerous  work  has  been 
given  as  follows:  "Persons  who  employ  children 
must  anticipate  the  ordinary  behavior  of  children,  and 
must  take  notice  of  their  lack  of  judgment,  and  must 
exercise  greater  care  toward  them  than  is  required  by 
law  to  be  exercised  toward  and  for  adult  persons." 
Furthermore  that  "It  is  an  actionable  wrong  for  a 
person  to  place  or  employ  children  of  such  immature 
judgment  as  to  be  unable  to  comprehend  the  danger 
to  work  with  or  about  a  machine  of  a  dangerous  char- 
acter, likely  to  produce  injury."  Instances  of  acts  that 
may  make  the  employer  liable  are,  taking  a  boy  who 
has  been  employed  by  a  railroad  company  as  a  shoveler, 
and  putting  him  on  a  train  as  brakeman,  where  he  is 
injured  while  coupling  cars ;  setting  a  minor  to  do  work 
beyond  his  or  her  strength,  and  the  like.  It  should  be 
understood  that  the  liability  of  the  employer  is  fixed, 
whether  he  himself  does  the  act  directly  resulting  in 
injury,  or  whether  the  act  is  done  by  some  superinten- 
dent, or  vice-principal,  whom  he  has  entrusted  with  the 
duty  of  managing  his  operations.  Where  the  relation 
of  the  parties  is  such  that  the  employee  injured  has  been 
working  for  an  independent  contractor,  although  the 
work  is  being  done  for  a  municipality  or  other  corpora- 
tion,  the   employee  who   is  injured  must  pursue  his 

6 


82  CLAIMS   FIXING   THEIR   VALUES 

remedy  against  his  direct  employer,  namely  the  in- 
dependent contractor.  An  instance  of  where  an  em- 
ployer is  held  free  from  liability  for  injuries  to  his  ser- 
vant, is  where  the  injury  is  entirely  due  to  the  criminal 
or  wrongful  act  of  some  third  persons.  For  example, 
if  wreckers  derail  a  train,  a  railroad  company  is  not 
liable  for  resulting  injuries  to  employees. 

In  any  event,  the  employer  is  only  liable  where 
actual  negligence  may  be  imputed  to  him.  He  is  not 
held  liable  for  pure  accidents.  A  railroad  engineer 
was  killed  because  of  the  collision  of  his  engine  with  a 
bull  on  a  railroad  track.  This  was  held  to  be  an 
accident  which  no  foresight  nor  prudence  on  the  part 
of  the  railroad  officials  could  have  prevented.  The 
proposition  is  simply  this,  that  an  employer  cannot  be 
held  liable  for  negligence  if  an  employee  is  injured  as  the 
restdt  of  a  pure  accident.  In  general,  the  master  is 
liable  for  all  injuries  to  his  servant  produced  by  the 
acts  or  omissions  of  other  servants  who  are  placed  in 
control  of  those  injured.  The  master  is  not  permitted 
to  evade  this  liability  by  contract.  He  cannot  con- 
tract in  advance  to  be  free  from  the  consequences  of  his 
own  negligence.  It  is  permitted,  however,  to  employers 
to  enter  into  contracts  by  which  employees  who  accept 
benefits  from  relief  associations,  thereby  release  the 
employer  from  claims  for  damages. 

85.     Duties  of  the  employer. 

The  first  and  most  important  duty  of  the  employer  is 
to  provide  the  employee  with  safe  appliances  or  machin- 
ery to  work  with,  and  a  safe  place  to  work  in.  This 
does  not  mean  that  he  insures  the  use  either  of  the 
place  or  of  the  machinery.  It  is  incumbent  upon  him, 
however,  to  keep  the  machinery  and  other  appliances 
in  proper  order  for  use,  and  to  provide  against  injury 


FACTS   INFLUENCING    QUESTIONS    OF   SETTLEMENT       83 

to  employees  because  of  defects  in  the  machinery  or 
appHances.  The  master  is  bound  only  to  discover 
such  defects  in  his  machinery  as  could  be  known  by  the 
exercise  of  proper  care  and  diligence.  The  care  re- 
quired here  is  likewise  reasonable  care,  or  care  accord- 
ing to  the  circumstances.  If  the  employer  provides 
such  machinery  or  appliances  as  a  prudent  man  would 
select  for  his  own  use,  he  has  fulfilled  his  entire  duty. 

86.  Effect  of  entrusting  duty  to  others. 

The  employer  cannot  escape  liability  by  entrusting 
his  own  responsibilities  to  others.  If  a  master  dele- 
gates to  a  servant  or  an  agent  the  duty  of  providing 
machinery  or  appliances  for  his  employees,  he  assumes 
the  burden  of  any  mishap  that  may  occur  through  the 
act  of  his  agent.  The  failure  to  furnish  a  safe  place  or 
proper  appliances  results  in  liability  for  the  master. 
Embraced  in  the  duty  to  furnish  a  safe  place  to  work  in 
is  the  duty  to  provide  the  employees  with  competent 
fellow  servants.  Negligence  in  the  choice  of  fellow 
servants  for  one's  employees  may  produce  liability  to 
the  same  extent  as  negligence  in  the  choice  of  a  place  to 
work  in. 

87.  What  kind  of  appliances  must  the  employer  furnish? 

It  is  only  required  that  the  machinery  or  appliances 
furnished  to  employees  be  reasonably  safe  and  suitable 
for  the  purpose  intended.  The  employer  need  not 
procure  the  very  latest,  the  very  best,  or  the  very 
safest  apparatus.  It  is  only  necessary  that  it  be 
reasonably  safe.  This,  however,  depends  largely  upon 
the  nature  of  the  employment.  Unusual  dangers  re- 
quire unusual  precautions  and  as  has  already  been  said, 
what  is  the  highest  care  in  the  handling  of  milk  is  the 
grossest  negligence  in  the  handling  of  electricity. 

The  test  generally  applied  is,  is  the  employer  adopt- 


84  CLAIMS   FIXING   THEIR   VALUES 

ing  the  customary  methods  employed  in  his  particular 
business ?  Therefore,  in  an  attempt  to  discover  whether 
or  not  negligence  exists  because  of  failure  to  provide 
safe  appliances,  it  is  always  necessary  to  ascertain  the 
general  usage  in  that  particular  trade  or  occupation. 
Typical  cases  are  injuries  to  sailors  by  falling  through 
open  hatchways;  failure  to  guard  an  elevator  shaft; 
failure  to  provide  guards  for  dangerous  machinery; 
leaving  cog  wheels  exposed  where  workmen  are  com- 
pelled to  pass  constantly.  The  cases  upon  this  sub- 
ject are  so  numerous  that  for  specific  instances,  readers 
can  only  be  referred  to  the  law  of  negligence,  where  a 
case  may  be  found  for  almost  any  conceivable  circiim- 
stance  resulting  in  injtuy  to  employees.  It  is  immate- 
rial whether  the  appliances  furnished  by  the  employer 
to  his  workmen  are  animate  or  inanimate.  It  is  just 
as  much  negligence  to  provide  an  employee  with  a 
dangerous  horse  as  with  a  defective  locomotive, 

A  distinction  exists  between  dangers  that  are  open 
or  obvious  and  dangers  that  are  latent  or  hidden.  If 
an  employer  sets  an  employee  at  work  on  a  boiler  which 
explodes  because  of  a  defect,  the  defect,  to  render  the 
employer  liable,  must  be  such  a  one  as  the  employer 
could  have  discovered  by  the  exercise  of  reasonable 
skill  and  diligence.  If  the  employer  furnishes  the 
employee  with  machinery  which  to  himself  is  obviously 
dangerous,  he  is  liable  for  any  mishap  that  results.  The 
employer  is  bound  to  make  inspections  of  his  machinery 
and  to  see  that  they  will  stand  the  test  of  the  strain  or 
work  to  which  they  are  to  be  subjected.  The  same 
principles  are  applied  in  cases  of  master  and  servant 
for  the  determination  of  negligence  as  in  any  other  case. 
The  care  required  is  reasonable  care  and  the  injury 
must  be  the  proximate  result  of  the  master's  negligence. 
Where  an  employee  is  put  at  a  dangerous  employment, 


FACTS    INFLUENCING    QUESTIONS    OF    SETTLEMENT        85 

it  is  the  duty  of  the  master  to  warn  his  employee  of  the 
danger  and  to  instruct  him  how  to  avoid  it. 

88.     Fellow  servant  doctrines. 

We  now  come  to  the  principal  modification  of  an 
employer's  liability  for  injuries  to  his  servant.  This  is 
that  the  injury  resulted  from  the  act  of  a  fellow  servant. 
If  the  employer  has  selected  his  servant  with  care  and 
has  not  endangered  one  servant  by  placing  him  in 
companionship  with  a  reckless  or  careless  fellow  work- 
man, he  has  done  his  full  duty  by  the  employee.  This 
defence  is  open  to  any  employer.  Namely,  that  the 
injury  has  been  the  result  of  the  act  of  a  fellow  servant. 
It  is  to  be  recalled  that  we  are  dealing  now  with  the 
common  law  liability  of  the  employer.  We  shall  treat 
hereafter  of  the  statutes  that  entirely  relieve  the  em- 
ployee of  the  burdens  of  this  doctrine.  If  the  master 
has  been  negligent  in  employing  servants,  the  other 
employees  have  an  action  for  any  injury  that  may  result 
from  their  carelessness.  The  master  again  is  only 
required  to  use  reasonable  care.  A  ship  owner  who 
puts  an  incompetent  person  at  the  wheel  by  reason  of 
which  a  collision  occurs,  and  some  of  the  sailors  are 
killed,  is  liable  for  such  negligence.  The  various  de- 
fects in  servants  that  may  lead  to  liability  are  inexper- 
ience, bad  habits,  intoxication,  and  similar  vices. 

In  general,  the  master's  liability  is  the  same  if  the 
act  that  causes  an  employee  injury  is  due  to  the  negli- 
gence of  his  superintendent  or  vice-principal,  as  if  he  had 
done  it  personally.  On  the  other  hand,  if  the  injury  is 
due  to  the  act  of  a  fellow  servant,  the  master,  where  the 
common  law  liability  remains  unchanged  cannot  be 
held  liable.  If  the  master  and  a  servant  both  did  an 
act  which  results  in  injury  to  another  servant,  the 
master  is  liable. 


86  CLAIMS   FIXING   THEIR   VALUES 

89.     Fellow  servants,  those  engaged  in  common  employment. 

An  employer  seeking  to  avoid  liability  for  negligence 
on  the  ground  that  the  injury  to  his  servant  was  due  to 
the  act  of  a  fellow  servant,  can  only  avail  himself  of  this 
defense  under  certain  circtmistances.  The  first  requi- 
site is,  that  both  servants  must  have  been  engaged  in  a 
common  employment,  and  that  they  were  engaged  in 
that  common  employment  when  the  injury  happened. 
For  example,  Smith  and  Brown  are  engaged  in  operat- 
ing a  steam  hammer.  Brown  carelessly  lets  the  ham- 
mer descend  too  soon,  and  a  piece  of  metal  flies  out  and 
injures  Smith.  Smith  has  no  remedy  against  his  em- 
ployer for  the  injury  caused  by  his  fellow  servant  while 
they  were  engaged  at  a  common  employment.  But 
suppose  that  the  employer  calls  Brown  and  says, 
"Take  Smith  and  three  other  men  and  have  them  re- 
pair the  hammer."  Brown  has  changed  his  employ- 
ment for  the  time  being  and  has  become  a  superintend- 
ent or  vice-principal,  and  the  workmen  are  no  longer 
fellow  servants  of  Brown.  If  he  causes  them  injury, 
the  employer  is  liable.  This  is  a  broad  instance  and 
the  problems  in  practice  are  not  quite  so  easy  to  solve. 
But  the  test  of  common  employment  may  be  applied 
by  asking  the  question,  "Do  the  two  or  more  servants 
hold  the  same  grade  in  the  employment?"  If  they  do, 
they  are  fellow  servants. 

A  moment's  thought  will  disclose  that  the  theory  is, 
that  risks  from  the  acts  of  fellow  servants  are  matters 
that  a  man  of  reasonable  mentality  could  foresee  and 
assume  when  entering  the  employment.  The  possibil- 
ity that  one's  comrade  may  be  negligent  is  a  part  of 
each  man's  experience.  It  is  assimied  that  the  danger 
attendant  upon  the  work  fixes  the  amount  of  the  work- 
man's compensation,  and  he  is  supposed  to  a  certain 


FACTS   INFLUENCING   QUESTIONS   OF   SETTLEMENT       87 

extent  to  be  paid   in  advance   for  the  risk  that  he 
assiinies. 

90.  What  is  not  a  common  employment  ? 

It  need  scarcely  be  added  that  two  men  are  not  in  a 
common  employment  merely  because  they  work  for 
the  same  employer.  The  charwoman  of  the  employer 
is  not  the  fellow  servant  of  the  engineer  who  sees  to  the 
running  of  his  factory,  nor  are  the  sailors  who  man  his 
ships  fellow  servants  of  the  book-keeper  in  his  factory. 

91.  Association  as  a  test  of  common  employment. 

A  peculiar  phase  of  the  common  employment  doc- 
trine applies  in  certain  of  the  United  States.  In  order 
to  establish  that  a  person  has  been  injured  by  one  in  a 
common  employment  it  must  be  shown  that  the  em- 
ployment brought  the  servants  into  such  association 
with  each  other  that  they  exerted  upon  each  other  a 
certain  amoimt  of  influence  that  might  act  as  a 
safeguard. 

92.  Specific  instances  of  common  employment. 

Mill  hands  working  in  the  same  factory  are  fellow 
servants  and  the  employment  is  common;  the  same  is 
true  of  the  members  of  a  train  or  railway  crew;  the 
workmen  erecting  a  building;  a  switchtender  and  a 
locomotive  engineer;  a  brakeman  and  a  switchman,  and 
the  like.  Instances  might  be  multiplied  indefinitely, 
but  the  illustrations  given  show  in  a  general  way  the 
tests  applied. 

93.  Risks  wltich  the  servant  is  considered  to  have  assumed. 

Wherever  an  employment  is  manifestly  dangerous 
even  though  carried  on  in  the  usual  and  ordinary  way, 
any  employee  who  undertakes  the  work  assumes  the 


88  CLAIMS   FIXING   THEIR  VALUES 

risks  that  go  with  it.  If  a  servant  obeys  directions  that 
lead  him  into  places  manifestly  dangerous,  he  assimies 
the  risk  of  whatever  may  happen.  If,  on  the  other 
hand,  the  servant  is  led  into  danger  through  the  in- 
structions of  the  master,  the  master  is  liable  if  he  is 
injured.  The  employee  is  bound  to  use  prudence  in 
discharging  his  duties.  And  the  rule  here  also  is  that 
the  greater  the  risk,  the  greater  the  care  required  of  the 
employee.  For  example,  a  carpenter  who  works  on  a 
scaffold,  assumes  the  risk  of  his  position.  If  he  works 
on  an  elevated  platform  which  is  unguarded  and  falls, 
he  has  no  right  of  action.  If,  on  the  other  hand,  the 
scaffold  should  fall  because  of  defective  construction, 
the  employee  would  have  a  right  to  recover.  One  of 
the  risks  that  is  assumed  under  the  common  law  doctrine 
is  that  the  employee's  fellow  servant  may  be  careless. 
He  assumes  no  risk  that  his  superior  officers  will  be  neg- 
ligent or  incompetent.  The  knowledge  by  the  servant 
of  the  dangers  incident  to  the  work  he  has  undertaken 
is  itself  an  answer  to  any  possible  action  he  may  have 
for  injuries  received. 

We  have  seen  that  the  servant  or  employee  is  sup- 
posed to  have  assumed  whatever  risks  may  be  incident 
to  the  service  to  be  rendered.  Latent  defects  in  tools 
or  machinery  furnished,  that  result  in  injury  to  the 
employee  do  not  form  the  basis  of  liability  on  the  part 
of  the  master.  On  the  other  hand,  if  the  defect  in  the 
machinery  is  obvious  to  the  employee,  he  assumes  a 
danger  of  which  he  must  be  conscious.  But  he  does 
not  assume  risks  of  which  he  has  no  notice.  Nor 
must  he  be  subjected  to  greater  risks  than  the  particular 
business  usually  involves. 

The  doctrine  of  assumption  of  risk,  however,  is  itself 
subject  to  modification.  If  a  statute  requires  an  em- 
ployer to  guard  dangerous  machinery,  he  cannot  escape 


FACTS    INFLUENCING    QUESTIONS    OF    SETTLEMENT        89 

liability  for  injury  to  a  servant,  by  claiming  that  the 
latter  had  assumed  the  risk.  It  has  been  said  that  such 
a  statute  "has  merely  crystallized  the  demands  of 
ordinary  prudence,  in  requiring  that  cogs,  gearing  and 
other  machinery  shall  be  covered.  An  injury  from 
machinery,  open  and  uncovered  is  not  liable  to  occur, 
without  the  occurrence  of  some  accident  or  unexpected 
event,  such  as  a  slip  or  a  miscalculated  move.  And  it 
is  for  the  very  reason  that  such  things  may  in  number- 
less unexpected  ways  plunge  a  workman  into  danger, 
without  fault  of  his  own,  that  prudence  requires  proper 
safeguards  to  be  supplied  to  prevent  accidental  contact 
with  moving  machinery.  To  hold  that  a  prior  slip  or 
an  accidental  movement  which  brings  an  unf ortvmate 
workman  into  contact  with  uncovered  cog  wheels  is  to 
be  considered  as  the  proximate  cause  of  the  resulting 
injury,  would  be  to  practically  nullify  the  provisions  of 
the  law  made  to  protect  him  against  such  risks." 

The  accident  to  which  reference  has  been  made  hap- 
pened in  the  following  manner.  The  plaintiff  was 
employed  by  a  rubber  company  and  at  the  time  of  the 
accident  was  standing  upon  a  small  platform  beside  a 
machine,  attending  to  his  duties,  when  a  fellow  work- 
man accidentally  pushed  a  loaded  wheelbarrow  against 
the  platform  with  such  force  as  to  cause  the  plaintiff 
to  lose  his  balance.  In  the  effort  to  recover,  one  hand 
was  thrown  out,  went  into  the  uncovered  cogs  and  was 
crushed.     He  recovered  a  verdict  of  $2500. 

It  will  be  seen  at  once  that  cases  of  this  kind  destroy 
very  largely  an  employer's  immunity,  whether  based 
on  the  principle  of  assumption  of  risk,  or  on  the  fellow 
servant  doctrine.  The  conclusion  it  may  be  added  is 
eminently  just. 

There  is  no  special  need  for  examining  at  this  place 
the  effect  of  contributory  negligence  by  the  employee. 


90  CLAIMS   FIXING   THEIR   VALUES 

If  an  employee  is  injured  and  contributes  to  his  own 
injury,  he  forfeits  all  right  to  recover.  If  a  servant 
continues  to  work  after  becoming  aware  that  his  work 
is  dangerous,  he  asstmies  the  risk  of  injury.  If,  how- 
ever, he  notifies  his  employer  of  defects  in  machinery 
or  apparatus,  and  remains  a  reasonable  time  afterward 
upon  the  employer's  promise  to  make  repairs,  he  does 
not  lose  his  right  to  recovery.  This  in  outline  is  a 
simimary  of  the  principal  situations  that  may  arise 
where  an  employer  is  held  only  to  his  common  law 
liability. 

94.     Modification  of  common  law  liability.     Employer's  liability 
acts. 

Now,  this  liability  has  been  modified  in  almost  all 
instances  to  a  greater  or  less  extent.  The  complicated 
rule  of  law  to  the  effect  that  an  employer  who  seeks  to 
escape  liability  on  the  ground  that  an  injury  to  an 
employee  is  due  to  the  act  of  a  fellow  servant,  must  show 
that  they  are  acting  in  a  common  employment,  is  a 
doctrine  somewhat  difficult  even  for  lawyers  to  apply, 
and  we  have  discussed  it  as  fully  as  the  scope  of  this 
work  permits.  It  will  be  seen  that  this  system  of  law 
entails  some  hardship  upon  workmen.  For  one  reason, 
the  rights  of  an  employee  are  much  less  than  those  of 
the  average  member  of  the  public.  As  a  consequence, 
certain  modifications  of  this  law  have  been  made  in  the 
shape  of  what  are  known  as  workmen's  compensation 
acts.  These  acts  introduce  certain  modifications  into 
the  law  of  master  and  servant.  The  modifications  may 
be  very  sweeping  or  they  may  only  mitigate  the  severity 
of  the  common  law  in  certain  instances.  The  English 
act  of  1880  modified  common  law  liability  for  injuries 
to  a  servant  or  employee  in  the  following  instances. 
An  employee  was  allowed  to  recover  for  injury  because 


FACTS   INFLUENCING   QUESTIONS   OF   SETTLEMENT       9 1 

of  defects  in  the  machinery,  plant,  or  places  of  employ- 
ment, provided  the  defect  is  due  to  the  negligence  of  the 
employer  or  his  failure  to  discover  or  remedy  it.  This 
includes  the  negligence  of  any  person  whom  the  em- 
ployer has  entrusted  with  this  same  duty.  Secondly,  a 
remedy  was  given  if  the  injury  to  the  employee  occurred 
because  of  the  negligence  of  any  vice-principal,  that  is, 
of  any  person  entrusted  by  the  employer  with  the  duty 
of  superintendence  or  direction  of  the  work.  Third, 
the  employee  was  given  a  remedy  if  the  injury  occurred 
through  obeying  the  instructions  of  the  employer, 
which  instructions  were  defective  and  which  the  em- 
ployee was  bound  to  obey.  The  fifth  case  was  one 
allowing  a  remedy  to  the  employee  where  injury  was 
done  to  an  employee  through  negligence  on  the  part  of 
any  person  in  the  services  of  the  employer  entrusted 
with  the  charge  or  control  of  any  signal,  points,  locomo- 
tive engine,  or  train  upon  a  railway.  In  1897,  this  law 
was  still  further  modified  by  giving  compensation  to  all 
injured  employees  in  certain  employments  without 
reference  to  negligence  or  contributory  negligence. 
The  sole  fact  of  interest  in  these  acts  was  that  the 
employee  had  been  hurt  while  at  work.  Automatically, 
he  was  entitled  to  a  certain  compensation. 

By  legislation  of  1900  and  1906  in  England,  the  right 
of  an  employee  to  compensation  for  injuries  received  in 
the  course  of  his  employment  become  practically 
imiversal,  with  the  result  that  in  England  an  employer 
is  practically  an  insurer  of  the  safety  of  his  workmen. 
It  is  to  be  understood,  however,  that  the  compensation 
provided  by  the  act  is  a  sliding  scale  proportionate  to 
the  kind  of  employment  and  the  amount  of  remunera- 
tion, and  it  applied  only  to  persons  who  earned  less  than 
$1 200.00  a  year.  It  is  further  to  be  understood  that  in 
England  the  huge  verdicts  for  personal  injuries  that 


92  CLAIMS   FIXING   THEIR   VALUES 

are  common  in  America,  are  practically  unknown.  The 
compensation  provided  by  the  act  is  only  intended  to 
prevent  the  workman  and  his  family  from  being  thrown 
practically  into  the  poor  house  when  a  serious  injury 
occurs.  It  is  beside  the  purpose  of  this  work  to  at- 
tempt to  treat  exhaustively  the  various  conditions 
under  which  a  workman  is  entitled  to  compensation  in 
England.  We  have  discussed  the  matter  thus  far  only 
to  make  clear  the  tendency  of  the  Workmen's  Compen- 
sation Act.  We  shall  deal  more  particularly,  however, 
with  the  acts  upon  the  subject  of  employer's  liability 
in  the  United  States,  and  we  shall  add  as  an  appendix 
a  reference  to  the  various  laws  enforced  in  the  United 
States  and  foreign  countries,  so  that  they  may  be 
consulted  when  the  readers  of  this  work  may  desire. 

96.     Discussion  of  employer's  liabilty  in  the  United  States. 

The  common  law  doctrine  of  master  and  servant 
applies  in  most  jurisdictions  of  the  United  States,  but 
not  with  any  great  severity.  The  courts  have  shown 
a  disposition  to  increase  the  liability  of  the  employer 
and  in  some  states,  the  doctrine  of  master  and  servant 
has  been  entirely  abrogated.  The  most  sweeping  laws 
which  are  based  largely  upon  the  latest  English  Act  of 
1906,  have  been  adopted  in  the  states  of  New  Jersey 
and  Washington.  The  Federal  Laws  of  April  22,  1908, 
and  May  30,  1908,  have  practically  abrogated  the  doc- 
trine of  common  employment  and  provide  generally 
a  system  of  liability  of  employers  for  injuries  to  their 
employees.  These  laws,  however,  apply  only  to  inter- 
state commerce,  to  federal  works,  to  railroads  in  ter- 
ritories, and  to  government  employment.  Modified 
employer's  liability  laws  have  been  passed  in  Alabama, 
Massachusetts,  and  Pennsylvania,  and  a  sweeping  act 
has  been  passed  in  Colorado.     This  is  as  complete  a 


FACTS   INFLUENCING    QUESTIONS   OF   SETTLEMENT       93 

discussion  of  the  question  of  employer's  liability  as  can 
be  given  at  this  place.  We  have  added,  however,  as  an 
appendix  to  this  chapter,  a  list  of  all  of  the  employer's 
liability  laws  in  force  in  the  United  States,  that  will 
at  least  indicate  where  the  information  can  be  found. 
The  laws  in  the  United  States  vary  greatly  in  the 
extent  to  which  they  have  modified  the  common  law 
doctrine  of  master  and  servant.  In  some  states,  the 
common  law  rule  is  enforced,  in  others  the  common  law 
rule  has  been  entirely  abrogated.  In  still  others,  the 
common  law  rule  has  been  modified  to  the  extent  that 
the  mere  fact  that  one  is  injured  by  a  fellow  servant, 
does  not  deprive  him  of  a  remedy  against  the  employer. 
It  should  be  understood  that  the  list  of  laws  given  in 
this  chapter  does  not  include  all  of  the  legislation 
regulating  the  operation  of  factories  and  mines.  In 
those  cases  certain  special  rules  apply,  failure  to 
observe  which  constitutes  negligence.  The  object  of 
this  list  is  simply  to  furnish  as  complete  a  list  as  pos- 
sible of  the  statutes  of  the  United  States  that  fix  the 
liability  of  the  employer  when  his  employee  is  injured, 
where  the  statutes  modify  or  abrogate  the  common  law 
liability.  Statutes  regulating  hours  of  labor,  particular 
trades  or  professions  such  as  mines  are  not  included. 

employer's    liability   acts    IN   FORCE    IN   THE   UNITED 

STATES 

Alabama. — Code  1907,  section  3910.     Sub-division,  i. 
Arkansas. — Laws  of   1907,  page   162;   Laws  of   191 1, 

act  88. 
California. — Statutes    of    California,    1911,   page    796, 

chapter  319. 
Colorado. — Laws,  page  249,  chapter  113. 
Florida. — General  Statutes,  section  3150. 


94  CLAIMS   FIXING   THEIR  VALUES 

Georgia. — Code,  1911,  sections  2782-2784. 

Indiana. — Laws  of  1911,  page  145. 

Iowa. — Code  supplement  1907,  section  4999,  Amended 

Laws  of  1 911,  page  200. 
Kansas. — Laws  of  1911,  page  382. 
Maine. — Laws  of  1907,  page  336. 
Massachusetts. — Revised  laws,  chapter  106,  section  71. 

Statutes  1909,  chapter  514,  section  127;  1911. 
Minnesota. — Laws     of     1887,     chapter     13:    General 

Statutes    1894,    section    2701;    Revised    Laws 

1905,  section  2042. 

Mississippi. — Constitution  of  1890:  section  193.     Code 

1906,  section   4056:  Laws  of   1908,  page  204, 
chapter  194. 

Missouri. — Revised  Statutes  1899.  Section  2864. 
Amended  1905,  page  135. 

Montana. — Laws  1903,  page  156,  chapter  83.  Laws, 
page  47,  chapter  29. 

Nebraska. — Compensation  statutes  1909,  chapter  21, 
section  3. 

New  Jersey. — Laws  of  1911,  page  134,  chapter  95. 

New  York. — Consolidated  laws,  chapter  31,  article  14. 
Chapter  31,  article  18.  Laws  of  19 10,  chapter 
674. 

North  Carolina. — ^Privilege  Laws  1897,  P^g®  83,  chap- 
ter 56.     Revisal  (Laws)  1905,  section  2646. 

Ohio. — Laws  of  1911,  page  524.     . 

Oklahoma. — Constitution  article  9,  section  36. 

Oregon. — Laws  of  1911,  page  16,  chapter  3. 

Pennsylvania. — Act  of  1907,  June  10.     P.  L.  523. 

South  Carolina. — Constitution  article  9,  section  15. 

South  Dakota. — Laws  of  1907,  chapter  219. 

Tennessee. — Laws  of  1907,  sec.  3910.     Sub-division  I. 

Texas. — Laws  of  1905,  chapter  163. 

United    States. — Employer's    Liability    Act.     Act    of 


FACTS   INFLUENCING    QUESTIONS   OF   SETTLEMENT       95 

Congress,  June  ii,  1906,  chapter  3073,  34 
statutes  232.  United  States  Compensation 
Statute  supplement  1909,  page  11 48  (enforced 
in  inter-state  commerce,  in  the  territories,  and 
as  to  government  employees) . 

Utah. — Revised  Statute  1898,  section  1343  :  Compensa- 
tion Laws  1907,  section  1343. 

Vermont. — Laws  of  1911,  page  97. 

Virginia. — Constitution  Article  12,  section  162.  Code 
of  1904,  page  259.     Code  of  1904,  section  1294K. 

Washington. — Session  Laws  of  1911,  chapter  74. 

Wisconsin. — Laws  of  1907,  chapter  254. 

employer's  liability  ACTS  IN  FOREIGN  COUNTRIES 

England. — Workmen's  Compensation  Act  of  1906. 

As  an  instance  of  how  far  the  treatment  of  claims 
may  be  modified  by  these  changes  in  the  law  of  Em- 
ployer's Liability,  the  principal  effects  of  the  Washing- 
ton Compensation  Law  are  summarized.  The  introduc- 
tion to  this  law  is  of  extreme  interest.  Section  I,  which 
is  called  the  Declaration  of  Police  Power,  is  as  follows : 

"The  common  law  system  governing  the  remedy  of 
workmen  against  employers  for  injuries  received  in 
hazardous  work  is  inconsistent  with  modern  industrial 
conditions.  In  practice  it  proves  to  be  economically 
unwise  and  unfair.  Its  administration  has  produced 
the  result  that  little  of  the  cost  of  the  employer  has 
reached  the  workman,  and  that  little  only  at  large 
expense  to  the  public.  The  remedy  of  the  workman 
has  been  uncertain,  slow  and  inadequate.  Injuries  in 
such  works,  formerly  occasional,  have  become  frequent 
and  inevitable.  The  welfare  of  the  state  depends  upon 
its  industries  and  even  more  upon  the  welfare  of  its 
wage-worker.  The  State  of  Washington,  therefore, 
exercising  its  police  and  sovereign  power,  declares  that 


96  CLAIMS   FIXING   THEIR   VALUES 

all  phases  of  the  premises  are  withdrawn  from  private 
controversy  and  sure  and  certain  relief  for  workmen 
injured  in  extra  hazardous  work,  and  their  families  and 
dependents  is  hereby  provided,  regardless  of  questions 
of  fault,  and  to  the  exclusion  of  every  other  remedy, 
proceeding  or  compensation,  except  as  otherwise  pro- 
vided in  this  act ;  and  to  that  end  the  civil  actions  and 
civil  causes  of  action  for  such  personal  injuries  and  all' 
jurisdiction  of  the  courts  of  the  State  over  such  causes 
are  hereby  abolished,  except  as  in  this  act  provided." 
The  enumeration  of  extra  hazardous  works  includes 
such  a  wide  range  of  subjects  that  it  seems  to  protect 
workmen  in  any  kind  of  employment.  Besides  the 
workman  himself  the  protection  of  the  act  extends  to 
dependent  relatives  and  this  term  likewise,  includes  a 
wide  range  of  individuals.  A  schedule  of  contribution 
is  provided,  under  which  employers,  according  to  the 
kind  of  industry  in  which  they  are  engaged,  pay  into  the 
State  Treasury  certain  sums  of  money  out  of  which 
accident  claims  are  to  be  paid.  Without  going  further 
into  the  details  of  this  Act,  it  is  sufficient  to  say  that 
liability  to  pay  for  injuries  to  workmen  does  not  depend 
upon  the  existence  or  non-existence  of  negligence.  It 
depends  solely  upon  whether  or  not  the  workman  is 
engaged  in  an  extra  hazardous  calling  and  if  he  is,  he  is 
protected  automatically. 


CHAPTER  VIII 

CHARACTER  AND  STRENGTH  OF  EVIDENCE 

97.  Evidence.     What  it  is. 

98.  Burden  of  proof. 

99.  Presumptions. 
100.  Hearsay, 
loi.  Res  Gestae. 

102.  Opinions. 

103.  Expert  testimony. 

104.  Documentary  evidence. 

105.  Distinction  between  legal  evidence  and  evidence  in  general. 

106.  The  distinction  illustrated. 

107.  Circumstantial  evidence. 

108.  Character  of  witnesses. 

109.  Number  of  witnesses.     Conflicting  statements.      How  to 

reconcile  them, 
no.      Claimant's  account  of  accident. 

111.  Attendance  of  witnesses. 

112.  Veracity  of  witnesses. 

113.  Competency  of  witnesses. 

97.     Evidence.     What  it  is. 

The  evidence  is  what  we  depend  upon  to  establish  the 
facts  concerning  the  claim.  Evidence,  it  must  be  re- 
membered, has  two  meanings.  It  has  a  general  mean- 
ing, a  sense  in  which  all  people  use  it,  that  it  is  anything 
that  throws  light  upon  any  given  subject,  which  we  may 
term  "lay"  evidence.  It  has  a  secondary  and  special 
meaning,  the  sense  in  which  it  is  used  by  lawyers,  judges, 
and  courts  of  law.  The  legal  sense  of  the  word  "evi- 
dence" is  much  more  limited  than  its  general  sense. 
When  evidence  is  used  in  connection  with  a  suit  which  is 
pending  in  court,  it  means  such  matters  as  can  be  proved 
in  accordance  with  the  technical  or  legal  rules  of  evidence. 
7  97 


98  CLAIMS   FIXING   THEIR   VALUES 

When  so  understood,  the  person  who  is  considering  the 
evidence,  must  consider  it  only  in  so  far  as  the  court  will 
permit  it  to  be  proved.  But  on  the  other  hand,  when 
evidence  is  used  in  its  general  sense,  it  means  anything 
that  an  average  person  would  consider  as  helping  to  make 
up  his  mind  as  to  the  facts  of  the  controversy.  There- 
fore, a  claim  agent  or  adjuster  or  investigator  has  before 
him  two  kinds  of  evidence. 

In  the  first  place,  where  he  is  merely  trying  to  deter- 
mine the  value  of  a  claim,  he  will  investigate  every 
possible  fact  that  will  have  any  bearing  whatever  on  the 
injury  to  the  claimant,  on  his  condition,  and  -on  his 
previous  history.  If  the  case  is  a  close  one  where  no 
moral  question  is  involved,  and  his  sole  purpose  is  to 
make  as  strong  a  case  for  himself  as  possible,  he  will  see 
that  certain  facts,  either  in  his  favor  or  in  favor  of  his 
opponent  are  of  no  importance,  simply  because  the 
court  would  never  permit  either  party  to  prove  them. 
With  the  evidence  to  be  presented  in  court,  the  claim 
agent  as  a  rule  has  very  little  to  do.  And  the  reason 
for  this  is  that  even  lawyers  cannot,  without  a  great  deal 
of  study  and  difficulty,  decide  always  just  what  may  be 
admitted  in  evidence  and  what  may  not.  Hence,  the 
investigator's  care  should  be  to  obtain  all  of  the  evidence 
that  by  any  possibility  may  have  any  bearing  upon  his 
facts.  And  by  evidence,  we  mean  all  kinds  of  proof 
such  as  the  statements  of  witnesses,  the  testimony  of 
those  who  have  examined  the  ground,  the  testimony 
of  those  who  saw  the  accident  happen,  as  well  as  the 
testimony  of  those  who  know  the  previous  history  and 
the  present  condition  of  the  claimant. 

In  its  widest  acceptation,  evidence  includes  all  of  the 
facts  that  the  normal  mind  would  make  use  of  in  decid- 
ing a  disputed  question.  For  this  purpose,  men 
generally  examine  every  available  fact  which  they  con- 


CHARACTER  AND    STRENGTH   OF   EVIDENCE  99 

ceive  to  have  any  bearing  upon  the  subject  under  in- 
vestigation. In  passing  upon  a  person's  character, 
we  lend  a  ready  ear  to  the  facts  of  his  general  reputa- 
tion. That  he  is  generally  looked  down  upon,  that  his 
neighbors  close  their  doors  upon  him,  that  he  is  sus- 
pected of  dishonesty,  lead  us  readily  to  a  conclusion  of 
guilt  if  he  is  suspected  of  theft,  but  this  might  be  very 
difficult  to  prove  in  a  court  of  law. 

On  the  other  hand,  legal  evidence  is  such  as  a  court 
would  permit  litigants  to  present  in  proof  of  their 
respective  claims.  It  is  evidence,  as  generally  under- 
stood, with  something  subtracted  from  it.  The  rules 
of  legal  evidence  even  make  some  parties  incompetent 
to  testify.  A  great  proportion  of  the  rules  of  evidence 
consists  of  tests  by  which  certain  facts  are  to  be  excluded 
as  factors  bearing  upon  the  question  in  litigation. 

98.     Burden  of  proof. 

A  few  of  these  rules  are  of  material  importance  in 
claim  work.  Such  is  the  rule  as  to  the  burden  of  proof. 
The  burden  of  proof  means  simply  that  the  party  in 
court  who  asserts  a  fact  must  prove  it.  Thus  a  claim- 
ant in  court  asserting  that  the  defendant,  a  railroad 
company,  has  injured  him,  through  negligence,  has  the 
burden  of  proving  the  injury,  a  duty  toward  him,  and 
the  negligence  of  the  defendant.  And  when  the  claim 
agent  or  adjuster  has  honestly  made  up  his  mind  that  a 
claim  is  unfounded,  he  may  find  some  reliance  in  the 
difficulty  that  the  claimant  will  find  in  fulfilling  his 
obligation  to  meet  this  burden.  It  is  always  to  be 
recalled  also  that  the  claimant  must  connect  the 
defendant  with  the  accident,  that  is,  must  prove  that 
the  defendant  himself  or  someone  for  whom  he  is 
responsible  produced  the  injury.  The  failure  to  estab- 
lish this  fact  has  lost  many  cases  apparently  won. 


lOO  CLAIMS   FIXING   THEIR   VALUES 

99.  Presumptions. 

Scarcely  less  important  than  the  burden  of  proof  rule, 
is  the  rule  as  to  presumptions.  A  presumption  is  defined 
by  Stephen,  as  "a  rule  of  law  that  courts  and  judges 
shall  draw  a  particular  inference  from  a  particular  fact, 
or  from  particular  evidence,  unless  and  until  the  truth 
of  the  inference  is  disproved."  Thus,  at  the  beginning 
of  an  action  for  negligence,  the  presumption  is  that  the 
defendant  performed  his  lawful  duties  and  that  he 
commited  no  negligent  act.  Ordinarily  the  law  does 
not  make  any  presiunption  of  negligence.  But  there 
are  certain  circumstances  in  which  such  a  presumption 
arises.  If  two  railway  cars  of  the  same  company  meet 
in  a  right-angled  collision,  and  passengers  are  hurt,  the 
law  prestmaes  that  the  company  was  negligent.  And 
generally  speaking,  it  may  be  said,  that  exposing  those 
toward  whom  a  duty  is  owed  gives  rise  to  a  presumption 
of  negligence. 

100.  Hearsay. 

The  rules  as  to  hearsay  and  the  like  are  so  highly 
technical  that  they  are  beyond  the  scope  of  this  work. 
Briefly  the  hearsay  rule  excludes  all  statements  made 
by  a  person  not  called  as  a  witness  in  the  case.  It  is 
subject  to  numerous  exceptions,  among  which  are, 
affidavits,  dying  declarations,  statements  against  inter- 
est, public  documents,  admissions,  confessions,  and 
res  gestae. 

If  a  person  who  has  testified  in  a  previous  trial  has 
moved  away  or  died  or  become  inaccessible  in  any  way, 
in  certain  cases  his  previous  affidavits  or  testimony 
may  be  read  in  evidence  on  a  second  trial.  So  also  if 
his  testimony  on  a  second  trial  differ  from  that  on  the 
previous  trial,  his  former  testimony  may  be  read  to 


CHARACTER  AND    STRENGTH   OF   EVIDENCE  lOI 

contradict  him  in  certain  cases.     The  same  is  true  to  a 
more  Hmited  extent  as  to  contradictions. 

101.  Res  Gestae. 

The  most  important  exception  is  what  is  known  as 
the  rule  of  res  gestae.  This  is  a  loose  and  vague  term 
that  means  the  "transaction."  That  is,  facts  are 
admitted  as  proof  or  rather  as  evidence,  when  they  may 
be  considered  a  part  of  the  transaction,  or  subject  of 
litigation,  whereas  if  they  had  not  been  such  they 
might  have  been  excluded  as  hearsay.  It  will  be  seen 
at  once  that  the  rule  is  an  extremely  elastic  one,  since 
it  must  be  determined  in  each  individual  case,  first, 
what  is  the  transaction,  and  which  facts  may  be 
considered  a  part  of  it. 

102.  Opinions. 

Opinions,  as  a  general  rule,  form  no  part  of  legal 
evidence,  and  likewise,  are  little  employed  in  other 
evidence.  If  for  example,  it  is  desired  to  know  whether 
or  not  a  motorman  was  drunk  at  a  particular  hour,  it 
is  of  little  interest  to  us  that  a  witness  is  of  opinion  that 
he  never  drew  a  sober  breath. 

103.  Expert  testimony. 

In  claim  work,  however,  the  legal  rule  against  admit- 
ting opinions  is  honored  more  in  the  breach  than  in  the 
observance,  for  no  inconsiderable  portion  of  the  evi- 
dence, testimony,  or  proof  that  comes  into  the  hands  of 
the  claim  agent  is  opinion  evidence.  A  large  part  of 
the  medical  evidence  is  based  upon  opinions,  as  is  also 
the  evidence  as  to  a  claimant's  probable  expectancy  of 
life.  Testimony  as  to  lunacy  consists  largely  of  con- 
jectures and  opinions.  Expert  testimony  is  the  chief 
exception  to  the  rule  against  opinions  and,  as  we  have 
seen,  it  is  an  important  exception  to  the  claim  agent. 


I02  CLAIMS   FIXING   THEIR   VALUES 

104.  Documentary  evidence. 

Another  distinction  between  kinds  of  evidence  must 
be  noted  here.  It  is  the  distinction  between  oral  and 
documentary  evidence.  If  written  evidence  is  to  be 
produced,  it  is  generally  required  to  be  the  original 
document  and  not  a  copy.  But  there  are  certain  cir- 
cumstances under  which  copies  may  be  used.  So  much 
for  the  technical  rules  of  evidence. 

105.  Distinction  between  legal  evidence  and  evidence  in  general 

Let  us  glance  for  a  moment  by  way  of  illustration  at 
the  distinction  between  the  two  kinds  of  evidence. 
Namely,  the  evidence  that  would  be  admitted  in  court 
and  the  evidence  that  any  average  person  would  con- 
sider in  reaching  a  conclusion  as  to  any  set  of  facts. 

Suppose  that  a  case  is  on  trial  in  court  in  which  the 
driver  of  a  wagon  has  collided  with  a  moving  electric  car. 
There  is  no  direct  evidence  of  the  wagon's  rate  of  speed 
at  the  time  of  the  accident.  It  is  proposed  to  introduce 
evidence  to  show  that  the  driver  of  the  wagon  is  on  all 
occasions  a  most  reckless  driver,  that  he  makes  a 
specialty  of  turning  corners  on  two  wheels  and  that  his 
general  reputation  is  that  of  a  Jehu.  This  evidence 
will  be  rejected  by  the  court,  as  it  has  no  bearing  what- 
ever as  proof  that  on  this  particular  occasion  the  driver 
of  the  wagon  was  going  at  any  undue  rate  of  speed. 

106.  The  distinction  illustrated. 

If  the  case  were  not  in  court,  anyone  investigating 
this  particular  accident  would  lay  the  greatest  stress  on 
the  man's  general  reputation.  He  would  regard  it  as 
probable  that  the  driver  of  the  wagon  on  this  occasion 
was  driving  recklessly  and  he  would  make  that  assump- 
tion the  basis  of  a  thorough  investigation  of  all  facts  as 
to    the    driver's    conduct  immediately  preceding  the 


CHARACTER  AND   STRENGTH  OF   EVIDENCE  I03 

accident.  So  that  it  can  readily  be  seen  that  the 
investigator  must  examine  all  kinds  of  evidence.  He 
must  not  concern  himself  with  whether  or  not  the 
evidence  is  mere  hearsay;  he  should  always  state  how 
his  facts  are  to  be  proved,  whether  by  witnesses  or  by 
hearsay.  This  is  all  that  need  be  said  for  the  purpose  of 
the  present  work  as  to  the  difference  between  the 
evidence  that  may  be  introduced  in  court  and  the 
evidence  that  one  may  collect  in  investigating  an 
accident  and  its  causes. 

Let  us  now  examine  briefly  the  various  kinds  of 
evidence.  The  most  general  division  that  occurs 
usually  to  the  mind  is  the  distinction  between  direct 
evidence  and  circumstantial  evidence.  This  distinc- 
tion can  be  defined  better  by  way  of  illustration  than  by 
abstract  definitions.  Suppose  that  one  man  sees  two 
others  engaged  in  a  scufiie.  He  sees  the  one  move 
away  from  the  other,  draw  a  revolver  from  his  pocket, 
and  fire  it  point-blank  at  the  other.  This  would  be 
direct  evidence,  if  the  man  who  was  shot  died,  that  he 
had  been  murdered  and  by  the  man  who  shot  the  pistol. 
Suppose  again,  that  a  young  man  and  young  lady  are 
found  together  dead.  There  are  dark  stains  on  the 
lips  of  both.  An  examination  reveals  the  fact  that 
death  is  the  result  of  potassium  cyanide.  It  is  a  well 
known  fact  that  the  instant  this  chemical  enters  the 
system  of  a  human  being,  death  results  under  such 
circinnstances  that  movement  or  action  of  any  kind  is 
impossible.  The  room  contains  no  vessel  or  substance 
in  which  the  chemical  might  have  been  contained 
or  concealed.  The  circumstances  indicate,  therefore, 
clearly  that  some  third  person  has  administered  potas- 
sium cyanide  to  the  persons  who  have  died.  This  is 
what  may  be  known  as  circumstantial  evidence  of 
murder. 


I04  CLAIMS   FIXING   THEIR   VALUES 

107.     Circumstantial  evidence. 

One  of  the  most  striking  instances  of  the  value  of 
circumstantial  evidence  in  determining  the  guilt  of  a 
criminal  is  the  following.  A  farmer  in  Chester  County 
who  lived  some  fifteen  miles  from  Philadelphia,  was 
found  dead  in  his  house.  It  was  evident  from  the  cir- 
cimistances  in  which  he  was  found  that  he  had  been 
killed  by  terrific  blows  upon  his  head.  The  body  was 
not  discovered  for  two  days  and  there  were  consequently 
.no  newspaper  accounts  of  the  murder  for  that  length 
of  time.  On  the  day  after  the  murder  had  been  com- 
mitted, but  the  day  before  it  had  been  discovered,  a 
negro  stopped  at  a  news-stand  in  the  city  of  Philadel- 
phia and  asked  the  news-dealer  for  the  paper  containing 
an  account  of  the  murder.  The  news-dealer  replied 
that  none  of  the  papers  contained  any  account  of  a 
murder.  The  negro  replied,  "I  mean  the  murder  of  the 
farmer  in  Chester  County. ' '  The  negro  then  went  away. 
The  following  day,  the  murder  was  discovered  and  the 
newspapers  contained  accoimts  of  it.  Among  others 
toward  whom  suspicion  pointed,  but  of  whom  nothing 
definite  was  known,  was  the  negro  who  had  asked  the 
news-dealer  for  the  paper  in  the  manner  stated  above, 
and  who  had  been  arrested.  The  news-dealer  came 
forward,  identified  the  negro  and  described  how  the 
day  before  the  discovery  of  the  murder,  this  particular 
individual  had  asked  for  a  newspaper  containing  an 
account  of  the  murder.  It  will  be  seen  at  once  that  the 
circumstances  proved  conclusively  that  the  negro  pos- 
sessed information  of  the  murder  before  anyone  else, 
which  made' it  very  probable  that  he  was  the  person 
who  had  committed  the  murder.  This  was,  in  fact, 
practically  the  only  strong  evidence  that  was  used  to 
convict  him.  It  is  as  good  an  example  of  the  value  of 
circumstantial  evidence  as  can  be  imagined. 


CHARACTER  AND    STRENGTH    OF   EVIDENCE  I05 

Let  us,  therefore,  make  this  comment.  The  best 
evidence  that  one  can  have  is  direct  evidence.  And 
yet,  there  are  times  when  the  best  intentioned  of  people 
make  mistakes  in  ordinary  observations  and  in  the  direct 
use  of  their  own  eyes  or  ears.  On  the  other  hand,  there 
are  times  when  circumstantial  evidence,  as  in  the  in- 
stance just  given,  is  of  so  conclusive  a  kind,  that  it  is  as 
valuable  as  the  evidence  of  ten  men  who  could  say  that 
they  saw  the  thing  with  their  own  eyes.  A  rather 
ridiculous  instance  of  its  use  as  a  two-edged  sword  is 
the  case  related  by  Voltaire  of  the  Oriental  Zadig.  He 
was  accosted  in  the  queen's  gardens  by  some  of  her 
servants  who  said  they  were  in  search  of  her  favorite 
horse  and  her  favorite  dog.  They  were  in  doubt 
whether  the  horse  and  dog  had  passed  that  way  or  not. 
Zadig  began  to  ask  questions.  Did  the  horse  have  a 
long  mane?  Was  it  light  brown  in  color?  Did  it  wear 
golden  shoes?  Was  its  stride  eight  feet?  Was  it  so 
many  hands  high,  and  so  on,  to  all  of  which  the  servants 
replied  in  the  afifirmative.  Zadig  then  replied  that  he 
had  not  seen  the  horse,  whereupon  he  was  arrested  and 
called  before  the  queen.  The  queen  charged  him  with 
having  stolen  the  horse,  whereupon  he  justified  him- 
self by  stating  that  he  knew  the  height  of  the  horse  by 
the  fact  that  the  bushes  were  disturbed  up  to  a  certain 
height ;  that  he  knew  the  horse  wore  gold  shoes  by  the 
fact  that  he  had  seen  a  gold  scraping  in  a  footprint  at 
the  bottom  of  which  was  a  stone;  that  he  knew  the 
stride  of  the  horse  by  the  distance  apart  of  the  hoof- 
prints,  and  so  on.  The  queen  admired  his  ingenuity 
and  let  him  off  with  a  fine  of  some  $500.00  and  a  couple 
of  hundred  more  which  he  was  compelled  to  pay  in  tips 
to  the  various  officials  of  the  court.  He  decided  that  in 
future  when  he  saw  anything  out  of  the  ordinary  he 
would  keep  his  own  counsel.    A  few  days  later,  a  prisoner 


I06  CLAIMS   FIXING   THEIR   VALUES 

escaped  from  a  building  which  could  be  seen  from  the 
windows  of  Zadig's  apartment.  He  heard  the  noise 
made  by  the  escaping  prisoner — resolutely  remained  in 
his  room  and  made  no  investigation.  Notwithstanding, 
he  was  brought  before  the  courts,  where  it  was  proved 
that  his  window  faced  the  window  of  the  prisoner,  that 
by  the  exertion  of  his  ordinary  faculties,  he  must  have 
seen  the  prisoner  if  he  had  exerted  himself  to  do  so, 
and  that  he  could,  with  little  difficulty,  have  caused 
his  apprehension,  and  a  heavy  fine  was  imposed  upon 
him  for  his  negligence. 

The  moral  of  this  is  that  circumstantial  evidence  may 
at  times  be  as  damaging  to  one  as  beneficial.  Let  us 
now  take  an  example  of  the  way  in  which  a  proper 
recognition  of  the  value  of  circumstantial  evidence  may 
be  helpful  to  the  claim  agent.  In  a  certain  town,  a 
street  railway  for  some  300  ft.  of  its  length,  crosses  a 
deep  ravine  by  means  of  a  very  lofty  trestle.  The  rail- 
way ties  are  fairly  close  together,  but  not  so  close  that  a 
human  being  could  not  fall  between  them.  A  conduc- 
tor of  the  road  reported  on  a  cold  wintry  night  that  a 
woman  and  child  had  descended  from  his  car  on  the 
far  side  of  the  trestle,  stating  that  they  had  no  money 
to  pay  their  fare.  The  following  morning  the  news- 
papers contained  an  account  of  a  thrilling  rescue  of  a 
child  by  its  mother,  under  these  circumstances:  The 
mother  claimed  that,  fainting  with  cold,  she  had 
boarded  a  car  of  the  railway  company  near  the  trestle 
and  had  been  put  off  at  the  middle  of  the  trestle  be 
cause  she  had  no  money  to  pay  her  fare.  The  mother 
and  child  then  began  to  retrace  their  steps  across  the 
trestle,  the  mother  leading  the  way.  When  she  had 
proceeded  some  distance,  she  missed  the  child,  a  little 
girl,  and  turning  back,  retraced  her  steps  over  the 
trestle  on  all  fours,  looking  between  each  tie  for  some 


CHARACTER  AND   STRENGTH   OF   EVIDENCE  107 

trace  of  her  little  one.  Finally  she  came  to  the  ties 
between  which  the  child  had  fallen,  and  to  which  it 
was  clinging  by  one  hand.  She  dragged  it  to  a  place  of 
safety  and  staggered  to  her  home. 

That  this  was  a  story  when  told  well  calculated  to 
inflame  the  minds  of  the  public  against  the  railway 
company  needs  no  emphasis.  The  claim  agent  of  the 
company,  having  seen  the  newspaper  reports,  proceeded 
to  the  scene  of  the  accident  to  examine  the  ground.  It 
happened  that,  preceding  the  incident  related  above, 
there  had  been  a  light  fall  of  snow,  followed  by  extreme 
cold  weather.  When  the  claim  agent  arrived  on  the 
scene,  he  found  that  a  set  of  footsteps,  evidently  those 
of  an  adult  and  those  of  a  child,  led  from  the  side  of 
the  trestle  to  the  middle,  where  they  had  turned  about 
and  retraced  their  steps  to  the  place  where  they  had 
entered  upon  the  trestle  and  followed  on  for  some  dis- 
tance along  a  path  that  followed  the  line  of  the  ravine. 
A  careful  examination  of  the  snow  and  of  the  entire 
ground  disclosed  the  fact  that  there  was  nowhere  any 
trace  of  the  snow  having  been  disturbed  between  any  of 
the  ties  over  which  the  footsteps  led.  In  addition  to 
this,  the  footsteps  of  both  persons  were  continuous  to 
the  point  where  they  had  turned  back.  A  careful 
measurement  of  the  footsteps  was  made,  and  a  pair  of 
rubbers  belonging  to  the  child  were  foimd  to  fit  exactly 
the  smaller  footprints.  Witnesses  were  procured  in 
order  to  prove  that  the  footsteps  were  continuous,  that 
the  snow  had  not  been  disturbed  upon  the  ties  except 
by  footprints,  and  that  there  was  no  trace  whatever  of 
anyone  having  fallen  between  the  ties.  Besides  this, 
the  footprints  in  the  snow  showed  that  the  two  persons 
had  gone  on  the  trestle  from  the  side  of  the  ravine  and 
had  then  retraced  their  steps,  making  it  obvious  that 


I08  CLAIMS   FIXING   THEIR   VALUES 

the  parties  had  not  begun  their  walk  from  the  middle 
of  the  trestle. 

It  will  be  seen  at  once  that  by  nothing  but  circum- 
stantial evidence  the  entire  story  of  the  alleged  accident 
had  been  disproved.  If  the  footprints  began  at  the 
far  side  of  the  trestle,  went  to  the  middle  and  returned, 
it  was  obvious  that  they  had  not  begun  at  the  middle. 
If  there  were  no  marks  in  the  snow  beyond  ordinary 
footprints  to  the  middle  and  back  again,  it  was  obvious 
that  no  one  had  fallen  through,  and  if  the  footwear  of 
the  child  fitted  the  footprints  in  the  snow,  the  proof 
was  reasonably  conclusive  that  the  persons  presenting 
the  claim  were  the  persons  who  had  made  the  marks  in 
the  snow.  It  is  sufficient  to  say  by  way  of  comment 
that  the  investigator  must  not  stop  with  direct  evidence,, 
but  must  use  every  effort  to  get  all  of  the  proof  that 
may  have  any  possible  bearing  upon  the  circumstances 
surrounding  the  accident  or  other  occurrence. 

The  exact  value  of  stories  of  fraud  or  crime  can 
scarcely  be  determined.  Placed  in  the  hands  of  the 
ignorant  or  evil-minded  they  may  do  incalculable  harm, 
while  they  may  present  invaluable  lessons  to  the  dis- 
cerning mind.  The  exploits  of  a  Sherlock  Holmes 
may  seem  to  a  keen  mind  no  more  than  the  feats  of  a 
skilful  chess  player.  The  same  faculties  that  foresee 
the  inevitable  operation  of  the  mind  of  a  daring  and 
unscrupulous  criminal  are  employed  in  calculating 
what  move  the  chess  player's  opponent  will  make 
ten  plays  in  advance.  It  is,  after  all,  a  matter  of  careful 
analysis. 

But  the  valuation  of  evidence  is  a  matter  for  a  careful 
and  trained  thinker.  That  the  man  who  values  claims 
should  scrutinize  his  evidence  in  just  the  same  way 
needs  no  argument. 

The  great  problem  is  to  seize  at  once  what  is  essential 


CHARACTER  AND    STRENGTH    OF    EVIDENCE  lOQ 

from  what  is  not.  The  late  Cardinal  Newman,  one  of 
the  keenest  of  thinkers,  summarized  the  situation  ex- 
actly when  he  gave  the  illustration  of  two  men  arguing, 
each  about  a  different  proposition,  and  each  amazed 
that  the  other  was  not  convinced. 

108.  Character  of  witnesses. 

So  much  for  the  nature  of  evidence.  The  first  in- 
quiry toward  which  attention  must  be  directed  is  as  to 
the  character  of  the  witnesses  by  whom  the  facts  or 
evidence  are  to  be  proved.  The  most  general  classifica- 
tion that  one  can  adopt  is  whether  the  witnesses  are 
interested  on  one  side  or  on  the  other,  or  whether  they 
are  disinterested.  A  claimant  is  an  interested  witness 
in  favor  of  himself.  His  tendency  is  to  make  the  case 
look  favorable  to  himself.  The  driver  of  a  wagon  that 
has  caused  injury  is  an  interested  witness  in  his  own 
behalf.  The  testimony  of  all  interested  witnesses, 
needless  to  say,  is  to  be  scrutinized  carefully.  It  should 
make  anyone  cautious  to  accept  his  statements  without 
corroboration.  In  cases  of  this  kind  it  becomes  import- 
ant to  increase  the  number  of  witnesses.  Ordinarily, 
two  good  witnesses  to  an  occurrence  are  as  good  as  a 
dozen,  but  so  many  things  may  happen,  persons  may  die 
or  move  away,  that  it  is  well  to  have  as  large  a  number 
of  witnesses  as  can  be  obtained. 

109.  Number    of    witnesses.     Conflicting    statements.     How    to 

reconcile  them. 

With  increasing  numbers  of  witnesses,  the  likelihood 
of  conflict  between  their  various  statements  increases. 
In  such  a  case,  the  difficulty  of  the  investigator  is 
greatly  enhanced.  He  must  harmonize  conflicting 
statements  in  his  own  mind  so  as  to  discover  if  possible 
just  where  the  truth  lies.     The  best  manner  to  accom- 


no  CLAIMS   FIXING   THEIR   VALUES 

plish  this,  is  first  of  all  to  get  a  full,  statement  of  all  of 
the  evidence.  It  will  be  found  as  a  rule  that  they  all 
have  some  fact  or  facts  in  common.  Therefore,  the 
first  labor  in  reconciling  conflicting  statements  is  to 
take  from  all  of  them  those  facts  that  are  common  and 
set  them  down  as  facts  which  must  be  admitted  by 
everybody.  From  the  remaining  facts  which  conflict 
some  will  be  found  to  be  consistent  with  the  general 
report  of  the  accident,  and  some  will  be  found  to  be 
inconsistent.  If  any  of  the  inconsistent  facts  are  in 
any  way  absolutely  impossible,  they  may  be  rejected 
at  once,  while  the  consistent  facts  may  be  accepted.  In 
this  manner,  by  gradually  eliminating  facts  that  are 
improbable  and  those  that  are  impossible,  a  fair  ap- 
proximation of  the  true  state  of  facts  may  be  reached. 
We  may  illustrate  this  by  a  rather  broad  instance.  A 
lineman  at  work  on  a  telegraph  pole,  in  some  manner, 
comes  into  contact  with  a  highly  charged  wire,  and  falls 
to  the  ground  and  is  injured,  but  not  killed.  There  are 
several  witnesses  of  the  occurrence.  One  says  that  the 
lineman,  whom  we  will  call  Smith,  ascended  the  pole, 
was  there  for  a  few  moments,  that  he  attempted  to  put 
his  arm  between  two  wires  and  immediately  he  looked 
as  if  he  had  been  injured,  and  fell  to  the  ground.  He 
says  that  the  wires  on  the  pole  are  the  wires  of  the 
Ozone  Electric  Light  Company  and  carry  about  300 
volts.  A  second  witness  says  that  while  Smith  was  on 
the  pole,  a  wire  stretched  across  the  street  belonging  to 
the  Globe  Electric  Light  Company  and  carrying  20,000 
volts,  fell  across  the  pole  wires  and  struck  Smith's  arm, 
and  that  Smith  fell  to  the  ground.  A  third  witness 
states  that  he  is  employed  by  the  Globe  Electric  Light 
Company,  and  that  it  had  no  wires  in  that  neighbor- 
hood, that  he  saw  the  accident,  and  that  no  wire  had 
fallen.     On  an  examination  of  this  evidence,  it  will  be 


CHARACTER  AND    STRENGTH    OF    EVIDENCE  III 

seen  that  the  testimony  of  the  first  witness  and  that  of 
the  third  witness  are  in  general  harmony,  while  the 
testimony  of  the  second  witness  introduced  some  im- 
probabilities that  caused  us  to  regard  it  with  suspicion. 
To  begin  with,  if  Smith  had  been  struck  by  a  broken 
wire  carrying  20,000  volts,  he  would  have  been  killed 
instantly.  We  are,  therefore,  compelled  to  believe  that 
the  particular  wire  that  Smith  touched  did  not  carry  a 
high  enough  voltage  to  destroy  life,  and  that  his  in- 
juries are  probably  due  partly  to  the  shock  from  the 
wire  and  to  his  fall  to  the  ground.  The  testimony  of  the 
second  witness,  therefore,  must  be  disregarded.  This, 
as  already  stated,  is  a  broad  instance,  but  the  gen- 
eral method  may  be  pursued,  however  many  the 
statements  are,  and  however  much  they  conflict.  The 
first  step  is  to  select  whatever  facts  are  common  to  all 
of  the  statements,  and  then  to  eliminate  improbable  or 
impossible  ones. 

110.     Claimant's  account  of  accident. 

It  should  be  remembered  that  if  the  statement  ad- 
vanced by  a  claimant  discloses  what  may  be  termed  a 
good  cause  of  action,  his  own  testimony  may  carry  the 
case  to  the  jury.  In  the  same  way,  if  there  is  such  a 
conflict  that  it  cannot  possibly  be  reconciled,  and  some 
of  it  indicates  liability,  and  some  of  it  indicates  non- 
liability, there  is  every  reason  for  believing  that  the 
case  may  go  to  the  jury.  The  claimant's  own  state- 
ment of  the  accident  always  plays  an  important  part  in 
the  determination  of  this  question.  If  his  statement  is 
unshaken  under  the  severest  examination,  if  he  is  firm 
in  it,  and  evidently  believes  in  it,  even  if  there  is  testi- 
mony against  him,  he  has  a  good  chance  to  win,  and 
the  investigator  or  claim  agent  should  bear  this  fact  in 
mind.     On    considering    the    somewhat    subordinate 


112  CLAIMS    FIXING   THEIR   VALUES 

factors  like  medical  testimony,  it  is  to  be  recalled  that 
one  of  the  principal  values  of  the  medical  testimony  is 
in  fixing  absolutely  the  seriousness  and  extent  of  the 
physical  injury,  and  once  liability  has  been  admitted, 
it  is  the  medical  testimony  that  determines  in  a  fashion 
whether  the  injuries  are  permanent  or  temporary, 
whether  they  are  the  result  of  trauma,  or  whether  they 
are  pre-existent,  or  are  the  natural  consequences  of  a 
bad  family  history  or  a  vicious  life.  Therefore,  the 
medical  testimony  must  be  examined  with  the  utmost 
care. 

111.     Attendance  of  witnesses. 

Before  leaving  the  subject'  of  evidence  something 
must  be  said  of  the  means  of  producing  witnesses  for 
the  purpose  of  obtaining  their  testimony  and  of  the 
extent  to  which  the  testimony  of  certain  individuals 
must  be  rejected. 

There  is  one  fact  that  a  claim  agent  should  never 
lose  sight  of,  in  the  handling  of  his  facts  and  the  pre- 
paration of  his  data,  and  that  is  that  the  claim  may 
become  a  suit.  In  that  event,  everything  may  depend 
upon  how  far  he  has  kept  in  touch  with  his  witnesses, 
and  of  his  counsel's  ability  to  reach  them  when  needed. 
Needless  to  say,  the  volimtary  attendance  of  witnesses 
cannot  be  depended  upon,  and  the  presence  of  the  wit- 
ness is  secured,  as  every  one  knows,  in  general  practice, 
by  means  of  a  subpoena.  But  the  probable  difficulty 
of  securing  the  witness  in  the  first  instance  is  a  matter 
with  which  the  claim  agent  or  investigator  first  becomes 
acquainted.  The  character  of  one's  witnesses  informs 
him  immediately  whether  or  not  it  may  be  difficult  to 
produce  them  when  wanted.  Persons  in  professions, 
established  business  or  of  high  standing  are  almost 
invariably  attached  to   some  particular  location,   or 


CHARACTER  AND    STRENGTH   OF   EVIDENCE  II3 

have  so  large  a  circle  of  acquaintances  that  it  is  com- 
paratively easy  to  trace  their  whereabouts.  In  the 
case  of  individuals  of  less  importance,  however,  the 
matter  is  not  so  simple.  Here  the  claim  agent  or  in- 
vestigator must  be  guided  by  his  knowledge  of  human 
nature. 

For  human  beings  belong  to  two  classes.  Men  of 
stability  and  "birds  of  passage."  The  first  class  we 
have  sufficiently  described.  The  second  class  presents 
an  infinite  variety,  both  as  to  their  reliability  and  as  to 
the  extent  of  their  wanderings.  Trades  and  occupa- 
tions have  much  influence  upon  the  phenomenon  of 
drifting.  Journeymen  in  trades,  painting,  plumbing, 
and  the  like,  especially  if  unmarried,  are  likely  to  change 
residence  frequently,  through  change  of  employment, 
while  married  men  with  families  are  less  likely  to  change 
than  single  men.  The  location  in  a  city  must  also  be 
considered,  the  poorer  sections  of  the  cities  containing 
generally  a  population  that  may  be  termed  floating  or 
mobile.  In  the  case  of  a  witness,  poor  and  with  no 
occupation  or  ambition,  the  question  of  locating  him, 
once  he  has  been  lost  sight  of,  is  purely  a  matter  of 
chance. 

112,     Veracity  of  witnesses. 

Elaborate  works  on  logic  sometimes  devote  chapters 
to  the  calculation  of  chances.  When  the  man  in  claim 
work  begins  to  deal  with  the  veracity  of  his  witnesses, 
he  will  make  as  elaborate  a  calculation  of  chances  as 
human  experience  holds.  The  same  tests  are  applied 
here  in  a  sense  as  in  fixing  the  reliability  of  one's  wit- 
nesses, and  experience  is  the  only  school  in  which  one 
learns  to  discriminate  between  witnesses  who  may  be 
trusted  and  those  who  may  not. 


114  CLAIMS   FIXING   THEIR   VALUES 

113.     Competency  of  witnesses. 

The  general  rule  now  obtains,  with  few  exceptions, 
that  practically  all  persons  are  competent  as  witnesses. 
Persons  convicted  of  perjury  are  not  usually  competent, 
nor  may  husband  and  wife,  except  in  a  few  limited 
cases,  testify  against  each  other.  Insanity  and  extreme 
youth  also  are  disqualifications. 

Certain  persons  are  disqualified  from  testifying  be- 
cause of  their  peculiar  confidential  relationship  to  the 
litigants.  Lawyers  cannot  testify  to  matters  confided 
to  them  by  their  clients,  and  generally  speaking,  doc- 
tors or  clergymen  cannot  be  compelled  to  divulge 
matters  revealed  to  them  in  their  professional  capacity. 


CHAPTER  IX 

LITIGATION.       FACTORS  AND  EFFECTS 

114.  Basis  of  settlement  of  litigation. 

115.  Verdicts  previously  rendered  in  similar  cases. 

116.  Possibility  of  making  new  law. 

117.  Non-suits. 

114.     Basis  of  settlement  of  litigation. 

One  of  the  reasons  for  settling  the  claim  of  a  person 
injured  through  our  negligence,  is  that  in  a  sense,  we 
are  his  debtor.  If  we  have  deprived  him  of  his  health 
or  of  his  limbs,  we  are  under  the  highest  obligation  to 
compensate  him.  The  second  reason  is,  that  litigation 
of  this  kind,  which  is  so  enormous  in  bulk  and  so  baleful 
in  its  effect  upon  the  moral  life  of  a  community,  should 
be  avoided.  This  effort  to  avoid  litigation  results  in  a 
sort  of  bookkeeping  in  which  the  cost  of  litigation  is  one 
entry  on  the  ledger,  and  nominal  settlements  the  other. 
Even  where  a  claim  is  somewhat  doubtful  in  merit,  if  it 
has  any  foundation  at  all,  it  is  generally  considered 
wiser  to  make  a  nominal  settlement  than  to  invite 
litigation.  Let  us  consider  first  of  all,  a  doubtful  case 
of  liability  where  the  injuries  are  extremely  severe. 
In  general,  such  a  case  calls  for  settlement  if  it  can  be 
done  at  a  reasonable  figure,  by  reason  of  the  very  dan- 
gers arising  from  the  doubtful  issue  of  litigation.  Where 
the  injuries  are  trifling  and  the  amount  involved  small, 
it  is  usually  considered  better  to  adjust  a  claim  than  to 
waste  the  time  and  effort  of  able  counsel  upon  trifles. 
Again,  the  adjuster  of  each  company  has  his  finger 
more  or  less  upon  the  pulse  of  the  juries  of  his  com- 

"5 


Il6  CLAIMS    FIXING    THEIR   VALUES 

munity.  There  are  some  communities  where  the  fact 
that  the  defendant  is  a  corporation  and  particularly  a 
railway  corporation  is  in  itself  sufficient  to  double  a 
verdict.  Where  this  is  the  case,  the  adjuster  cannot 
be  too  careful  which  cases  he  permits  to  develop  into 
litigation. 

115.  Verdicts  previously  rendered  in  similar  cases. 

To  a  certain  extent,  the  verdicts  previously  rendered 
in  similar  cases  afford  him  a  test  of  how  much  should 
be  paid  in  the  case  imder  discussion.  An  effort  has 
been  made  in  various  communities  by  the  legislatures 
to  fix  certain  amounts  as  the  damages  allowable  for 
personal  injuries.  For  example,  it  was  provided  by 
one  statute  that  for  injuries  due  to  negligence  resulting 
in  death,  no  larger  sum  than  $5000  could  be  awarded 
in  damages.  It  was  further  provided  that  where  the 
injuries  did  not  result  in  death,  the  maximum  sum  to 
be  recovered  should  be  $3000.  This  law  has  generally 
been  disapproved  and  in  many  cases  has  been  held 
unconstitutional.  Some  state  constitutions  as  a  mat- 
ter of  fact  forbid  the  passage  of  any  such  acts.  Many 
of  the  new  Employer's  Liability  acts,  however,  limit 
the  amount  that  can  be  recovered  against  the  employer, 
because  in  most  cases  the  employee  has  the  privilege 
of  suing,  as  at  common  law,  and  therefore  his  right  to 
recover  whatever  damages  he  may  sustain  remains 
unimpaired. 

116.  Possibility  of  making  new  law. 

Litigation  performs  a  certain  useful  office  in  fixing 
standards  of  care  that  must  be  observed.  The  public 
generally  is  then  informed  that  it  too,  is  bound  to 
exercise  care  and  that  unless  it  conforms  to  the  ordinary 
standard  of  watchfulness  it  cannot  ask  damages  if  hurt. 


LITIGATION.       FACTORS   AND    EFFECTS  I17 

The  claim  agent  or  adjuster  must  therefore  consider  the 
possibility  whether  his  case  is  on  what  may  be  termed 
the  border  line  of  making  new  law.  If  it  had  not  been 
for  this  attitude,  such  cases  as  the  Pennsylvania  case  of 
Thane  vs.  The  Traction  Company,  which  settled  the 
principle  that  it  was  contributory  negligence  for  a 
passenger  to  ride  on  the  platform  of  a  car  when  he 
might  have  gone  inside,  would  never  have  become  law. 
If  the  case  is  one  in  which,  for  the  protection  of  defen- 
dants under  similar  circumstances,  a  higher  standard  of 
care  on  the  part  of  the  claimants  should  be  enforced, 
then  the  claim  agent,  before  determining  the  value 
of  his  claim,  must  consider  also  the  possibility  of 
establishing  an  important  point  of  law  in  his  favor. 
It  may  be  settled  as  a  principle  that  continued  sub- 
stantial verdicts  affect  a  community  badly.  They 
increase  litigation  by  exciting  the  cupidity  of  unscrup- 
ulous claimants.  They  increase  the  likelihood  that 
juries  will  go  beyond  the  point  of  reason  in  awarding 
heavy  damages  against  a  corporation  defendant.  The 
same  principle  applies  if  the  defendant  is  a  wealthy  or 
supposedly  wealthy  individual  or  partnership.  The 
rule  generally  is  to  avoid,  if  possible,  any  danger  of  an 
extreme  verdict. 

It  must  be  remarked  that  where  the  law  leaves  a 
claimant  to  his  common  law  remedy,  and  at  the  same 
time  provides  him  with  an  alternative  remedy,  where 
the  amount  of  his  recovery  is  limited,  the  claimant  is 
bound  by  his  choice  of  the  one  or  the  other  form  of 
action. 

117.     Non-suits. 

It  must  be  recalled  that  in  the  United  States  and 
England,  where  the  judge  determines  questions  of  law, 
and  the  jury  determines  questions  of  fact,  the  plaintiff 


Il8  CLAIMS   FIXING   THEIR   VALUES 

or  claimant  being  represented  by  one  lawyer  and  the 
defendant  by  another,  a  trial  of  an  action  at  law,  an 
action  to  recover  for  personal  injuries,  for  example, 
has  come  to  be  regarded  as  a  sort  of  duel  between  the 
two  lawyers,  in  which  a  close  case  may  be  decided  one 
way  or  another,  according  to  the  cleverness  of  either 
lawyer. 

The  danger  of  having  a  case  of  severe  personal  in- 
juries go  to  the  jury  is  one  with  which  every  claim  agent 
has  been  made  familiar  by  sad  experience.  The  only 
hope  of  averting  disaster  in  such  a  case  is  by  securing  a 
non-suit.  A  non-suit  is  the  judgment  of  the  court, 
when  the  plaintiff  has  submitted  all  of  his  evidence, 
that  the  plaintiff  has  not  proved  his  case,  or  as  it  is  put 
technically,  has  not  made  out  a  prima  facie  case,  say  of 
negligence.  This  may  be  made  clearer  by  illustration. 
If  the  investigation  in  the  hands  of  the  claim  agent  has 
developed  irrefutable  proof  that  the  claimant  was  hurt 
in  trying  to  board  a  rapidly  moving  car,  the  claim 
agent  may  conclude  at  once  that  he  has  nothing  to 
fear  from  litigation  and  that  his  counsel  will  be  able  to 
secure  a  non-suit.  This  is  a  conclusion  sometimes 
fraught  with  danger  for  this  reason. 

The  number  of  cases  in  which  the  question  to  be 
decided  is  negligence  or  non-negligence,  liability  or  non- 
liability, is  extremely  great.  It  forms  an  entirely 
unjustifiable  proportion  of  all  litigation,  and  the  blame 
is  hard  to  place.  It  may  be  ascribed  in  part  to  the 
feverish  haste  with  which  all  modern  activities  are 
performed.  The  result  is  an  enormous  number  of 
decisions  that  cover  almost  every  conceivable  phase  of 
mishap.  From  this  it  is  apparent  that  a  careful  study 
of  decisions  in  point  will  inform  a  claimant  or  his  law- 
yer what  they  must  prove  in  order  to  pass  through  the 
Scylla  and  Charybdis  known  as  a  non-suit.     The  un- 


LITIGATION.      FACTORS   AND    EFFECTS  II9 

scrupulous  claimant  has  been  known  to  ask  his  lawyer 
before  telling  his  story  what  he  must  prove  to  win  his 
case,  while  every  large  city  boasts  a  certain  niunber  of 
lawyers  against  whom  a  non-suit  can  practically  never 
be  obtained. 

Let  us  illustrate  the  matter  further.  A  decision  is 
handed  down  by  the  Supreme  Court  in  these  words: 
"  It  is  the  duty  of  every  person  about  to  cross  a  railroad 
track  to  stop,  look,  and  listen,  before  attempting  to 
pass  over."  A  claimant  hurt  at  a  railroad  crossing  will 
often  declaim  in  an  almost  verbatim  rendering  of  the 
decision,  "Before  I  attempted  to  cross  the  railroad 
tracks  I  stopped  and  looked  and  listened."  In  a 
recent  case  a  claimant  testified,  "As  I  approached  the 
first  line  of  tracks  I  stopped  my  team  and  before  crossing 
the  second  track  looked  in  both  directions."  The  trial 
judge  looked  keenly  at  the  witness  for  a  moment  and 
then  said,  "You  have  made  a  slight  mistake  in  your 
testimony."  The  witness  replied,  somewhat  confused, 
"In  what  respect?"  The  judge  said,  "You  have  used 
the  word  'crossing'  where  the  Supreme  Court  said 
'  entering. '  Throughout  the  trial  the  claimant  had 
given  his  testimony  in  the  exact  words,  with  that  excep- 
tion, of  the  Supreme  Court  in  a  similar  case,  decided  in 
favor  of  a  plaintiff.  That  the  biting  sarcasm  of  the 
judge  was  justified,  needs  no  comment. 

So  that  the  possibility  of  a  non-suit  is  by  no  means  a 
sure  guide  in  the  handling  of  a  claim,  or  for  the  present 
purpose,  in  passing  upon  its  value. 


CHAPTER  X 
Fraud 

ii8.  Evil  tendencies  of  the  practice. 

119.  Subject  to  be  approached  with  unbiased  mind. 

120.  Prompt  action  if  fraud  is  present. 

121.  Classification  of  fraud. 

122.  Premeditated  fraud. 

123.  Casual  fraud. 

124.  Complexity  of  the  situation. 

125.  Manufacture  of  evidence. 

126.  Exaggerated  statements. 

127.  The  legal  profession. 

128.  The  medical  profession. 
139.  Location  as  affecting  fraud. 

130.  Boarding  and  alighting  accidents. 

131.  Nature  and  extent  of  injury. 

132.  Severity  of  injury. 

133.  Mystery  surrounding  a  claim. 

134.  Attempted  concealments. 

135.  Previous  accidents. 

136.  Professional  claimants. 

137.  Deliberate  concealment. 

138.  Substituted  claimants. 

139.  Fraud  as  to  earning  capacity. 

140.  Past  history  or  reputation. 

141.  Difference  of  communities. 

142.  Difference  of  occupations. 

143.  Natives  of  different  countries. 

144.  Conclusion. 

118.     Evil  tendencies  of  the  practice. 

The  element  of  fraud,  premeditated  or  otherwise,  in 
connection  with  the  presentation  of  claims  or  suits  for 
damages  against  defendant  corporations,  has  in  the  past 
proven  of  too  serious  moment  to  justify  our  passing 
over  a  subject  so  fraught  with  evil  consequences  without 
commenting  at  some  length  upon  the  various  forms  and 

120 


FRAUD  121 

directions  in  which  this  nefarious  practice  has  made 
itself  manifest. 

119.  Subject  to  be  approached  with  unbiased  mind. 

In  weighing  testimony,  as  has  been  stated,  with  a 
view  to  determining  the  reasonableness  and  accuracy 
of  its  component  parts,  it  is  essential  that  the  investiga- 
tor or  adjuster  should  approach  his  subject  with  an 
open  and  unbiased  mind,  for  it  does  not  necessarily 
follow  that  fraud  is  present  merely  because  certain  por- 
tions of  the  evidence  may  appear  to  be  contradictory 
or  inconsistent  with  the  preponderance.  Nor  should 
fraudulent  intent  be  too  hastily  imputed  to  a  witness  or 
claimant  even  in  cases  where  his  or  her  statements 
stand  alone,  without  support  or  corroboration,  and 
clearly  in  open  conflict  with  the  entire  mass  of  evidence. 
Allowances  should  be  made  for  the  possibility  of  honest 
mistakes,  as  well  as  certain  natural  differences  of  opin- 
ions, before  we  place  upon  one  the  serious  and  far-reach- 
ing charge  of  fraud.  The  exercise  of  reasonable  mode- 
ration in  arriving  at  conclusions  upon  matters  of  this 
nature  in  advance  of  conclusive  evidence  of  guilt  is 
rightfully  due  both  parties  to  the  controversy. 

120.  Prompt  action  if  fraud  is  present. 

Once  the  fact  is  evident,  however,  that  intentional 
efforts  are  being  made  to  mislead  or  to  deceive  the 
defendant  with  respect  to  essential  features  of  the  case, 
no  energy  or  expense  should  be  spared  in  uncovering 
the  perpetrators  of  the  fraud.  Prompt,  decisive  meas- 
ures should  immediately  be  adopted,  and  every  proper 
method  pursued  to  run  the  conspirators  to  earth.  In 
this  effort,  if  wisely  directed,  the  defendant  cannot 
but  have  the  hearty  support  and  approbation  of  every 
right-thinking  person. 


122  CLAIMS   FIXING   THEIR   VALUES 

121.  Classification  of  fraud. 

Passing  then  to  a  consideration  of  the  subject  proper 
itself,  we  find  that  fraud  in  this  particular  connection 
naturally  classifies  itself  into  two  distinct  divisions,  i.e., 
a.  deliberate,  premeditated  fraud,  and  h.  incidental  or 
casual  fraud.  The  former  frequently  carries  with  it 
what  may  be  termed  criminal  intent,  oftentimes  with- 
out regard  for  possible  consequences.  The  latter, 
while  not  so  openly  vicious  in  character,  doubtless  is 
the  more  insidious  in  its  effects,  largely  exceeding  the 
former  as  it  does  in  numbers,  and  constituting  thereby 
a  problem  of  relatively  greater  proportions  when  con- 
sidered in  the  aggregate. 

122.  Premeditated  fraud. 

Premeditated  fraud,  as  herein  before  described,  may 
be  predicated  upon  the  actual  occurrence  of  an  accident 
or  other  cause  of  action,  or  it  may  be  foimded  upon  an 
alleged  incident  which  really  has  no  existence  in  point 
of  fact.  Instances  of  each  of  these  classifications  are 
too  numerous  in  the  experience  of  those  conversant 
with  claim  work  to  necessitate  illustration.  Suffice  to 
say,  the  exercise  of  skilled  methods  of  the  highest  degree 
oftentimes  are  necessary  to  successfully  combat  the 
pernicious  tendencies  of  claimants  so  evilly  disposed. 

Fortunately  the  fraudulent  nature  of  no  inconsider- 
able proportion  of  claims  and  suits  of  this  character  is 
comparatively  easy  of  detection  because  of  the  imusual 
lengths  to  which  those  directly  concerned  resort  when 
hard  pressed  in  their  efforts  to  strengthen  their  case. 
Many  fall  of  their  own  weight  when  put  to  the  test  of 
investigation,  while  others  cnmible  like  a  house  of  cards 
immediately  the  searchlight  of  publicity  is  turned  in 
their  direction.  Still  others  prove  more  difficiilt  of 
solution  because  of  their  having  been  constructed  by 


FRAUD  123 

hands  more  skilled  and  experienced  in  this  nefarious 
calling.  Without  principle  or  morals,  in  open  defiance 
of  all  recognized  distinctions  between  right  and  wrong, 
and  actuated  solely  by  greed,  individuals  of  this  type 
demand  the  sternest  repressive  measures  provided  by 
law  once  their  intentions  have  been  bared  to  public 
view.  And  in  thus  exposing  malefactors  of  this  school 
a  concern  not  only  protects  its  own  interests  against 
unlawful  invasion,  but  discharges  as  well  a  public  duty 
toward  the  whole  people  of  a  community. 

123.  Casual  fraud. 

Incidental  or  casual  fraud  in  the  claim  field  implies  a 
lesser  degree  of  taint,  yet  offers  even  greater  scope  and 
elasticity,  while  at  the  same  time  proving  more  difficult 
of  exposure,  if  not  of  detection.  Instances  strongly 
presumptive  of  fraud  are  of  almost  daily  occurrence  in 
the  annals  of  large  concerns,  yet  baffle  exposure  often- 
times unless  aided  by  some  fortuitous  circumstance. 
It  is  in  cases  of  this  character  that  the  skill  and  ex- 
perience of  the  investigator  is  tested  to  the  utmost  in 
his  efforts  to  arrive  at  an  accurate  determination  of  the 
precise  facts  surrounding  the  circumstances  in  dispute. 
Here  it  is  that  the  old  axiom  of  the  law  "false  in  one, 
false  in  all,"  not  infrequently  stands  forth  as  a  beacon 
light  in  the  investigation  and  consideration  of  cases  of 
this  particular  nature.  More  often  than  not  the  first 
presumption  of  fraudulent  intent  is  forcibly  presented 
by  a  statement  palpably  false,  and  which,  when  sup- 
ported by  other  allegations  of  like  nature,  admits  of 
but  one  conclusion. 

124.  Complexity  of  the  situation. 

It  is  then  to  a  situation  pregnant  with  myriad  com- 
plexities that  we  must  address  ourselves  in  considering 


124  CLAIMS   FIXING   THEIR   VALUES 

the  almost  limitless  forms  in  which  fraud,  in  some  degree 
at  least,  may  present  itself  for  the  contemplation  of  him 
to  whom  is  assigned  the  responsibility  of  arriving  at  a 
proper  determination  of  the  probable  facts  in  any  given 
case.  It  is  not  to  be  presumed  that  in  all  cases  he  will 
be  able  infallibly  to  detect  the  presence  of  fraudulent 
intent,  nor  always  to  mete  out  proper  punishment  to 
the  deserving;  but  it  is  to  be  expected  that  he  shall  be 
ever  alert  to  the  possibilities  of  the  situation,  and  that 
he  will  act  with  promptness  and  dispatch  whenever 
circumstances  shall  seem  to  warrant  decisive  action 
upon  his  part. 

While  fraudulent  intent  may  at  times  manifest  itself 
in  connection  with  claims  for  property  damage,  it  is 
rather  with  its  relationship  to  personal  injury  claims 
that  we  shall  concern  ourselves  at  this  time.  Attempts 
to  deceive  with  respect  to  the  former,  usually  operate 
in  the  direction  of  exaggerating  values,  which,  in  the 
last  analysis  generally  are  subject  to  certain  recognized 
standards  of  valuation  which  aid  materially  in  holding 
in  check  ambitious  efforts  to  pad  claims  of  this  charac- 
ter. It  is  not  difficult  to  appraise  the  approximate 
damage  done  to  an  automobile,  carriage,  horse  or  other 
piece  of  property.  Personal  injury  claims,  however, 
are  susceptible  of  no  such  standards  of  comparison,  and 
offer,  therefore,  greater  possibilities  to  claimants  of 
easy  conscience. 

126.     Manufacture  of  evidence. 

The  manufacturing  of  evidence,  either  in  whole  or  in 
part,  is  not  always  monopolized  entirely  by  claimants 
themselves,  for  others  interested  in  the  success  of  the 
imdertaking  occasionally  lend  material  aid,  sometimes 
even  without  the  knowledge  or  consent  of  the  principal. 
A  case  in  point  occun'ed  some  years  ago  wherein  an 


FRAUD  125 

elderly  gentleman,  while  walking  along  a  lonely  road  at 
night,  was  struck  by  a  passing  vehicle  and  was  left  lying 
upon  the  road  in  an  unconscious  condition.  Unscru- 
pulous relatives  seized  upon  the  occurrence  as  a  means 
of  levying  tribute  upon  two  separate  and  distinct  con- 
cerns whose  delivery  wagons  traversed  the  scene  of 
the  mishap,  and  actually  succeeded  in  securing  a  reason- 
ably substantial  settlement  from  one  of  them  upon  the 
strength  of  statements  furnished  by  certain  alleged 
witnesses  to  the  affair.  Yet  none  were  more  genuinely 
astonished  than  the  old  gentleman  himself  when  the 
fraudulent  nature  of  the  evidence  was  exposed  by  a 
subsequent  investigation  which  was  instituted  by  one 
of  the  two  concerns. 

In  the  great  majority  of  cases,  however,  wherein 
fraud  plays  any  considerable  part,  it  is  reasonable  to 
suppose  that  the  claimant  himself,  either  directly  or 
indirectly,  lends  his  aid  and  consent  to  the  project.  He 
thus  knowingly  forms  the  keystone  to  his  own  arch  of 
fraud,  and  renders  possible  oftentimes  the  guilty  par- 
ticipation of  others. 

126.     Exaggerated  statements. 

In  considering  this  phase  of  our  subject,  it  may  not 
prove  amiss  at  this  time  to  make  a  distinction  as  between 
claimants  whose  statements  are  exaggerated  or  colored, 
or  influenced  to  some  extent  by  an  instinctive  desire 
to  strengthen  their  cause  and  those  whose  irresistible 
desire  it  is  to  win,  irrespective  entirely  of  actual  facts. 
In  other  words,  one  takes  the  garment  as  it  actually 
exists  and  effects  certain  material  alterations ;  the  other 
in  a  sense  cuts  the  cloth  to  suit  his  own  individual 
pleasure,  without  regard  to  any  considerations  w^hatso- 
ever  of  honesty  or  of  principal.  While  the  intent  of 
each  is  much  the  same,  and  the  results  oftentimes  are 


126  CLAIMS    FIXING   THEIR   VALUES 

not  markedly  dissimilar  in  their  extent,  still  upon 
reflection  it  will  be  seen  that  of  the  two,  the  methods 
pursued  by  the  latter  are  the  more  reprehensible  be- 
cause of  the  more  clearly  defined  criminal  instinct  dis- 
played. In  individual  cases,  reasonable  allowance  may 
occasionally  be  made  for  the  former ;  for  the  latter  slight 
consideration  need  ever  be  shown. 

127.  The  legal  profession. 

The  r6le  played  by  certain  types  of  attomeys-at-law 
in  conjunction  with  matters  of  this  sort,  offers  wide 
latitude  for  discussion.  To  quote  from  the  Spectator 
"much  may  be  said  upon  both  sides."  Nothing  of  any 
real  value,  however,  can  arise  out  of  intemperate  de- 
nunciation of  all  members  of  the  bar  who  may  know- 
ingly or  otherwise,  lay  themselves  open  to  criticism 
upon  this  score.  It  clearly  would  be  absurd  to  attack 
the  profession  as  a  whole  merely  because  of  the  unethical 
practices  of  the  few.  Time  and  patience  doubtless  will 
bring  forward  a  just  and  equitable  solution  of  this 
rather  perplexing  problem. 

128.  The  medical  profession. 

The  situation  is  somewhat  the  same  within  the 
medical  profession,  though  candor  compels  us  to  admit 
that  laxity  here  is  somewhat  more  widespread  than  is 
true  of  the  law.  With  the  latter,  there  are  certain  re- 
straining influences  which  have  a  deterrent  effect  upon 
the  more  venturesome.  Cognizant  of  this  advantage,  a 
certain  element  within  the  field  of  medicine  and  surgery 
not  infrequently  furnish  evidence  of  a  disposition  to 
exceed  the  bounds  of  reason  and  of  good  judgment  in 
the  lengths  to  which  they  ofttimes  go  in  their  efforts  to 
bolster  up  tottering  claims.  It  is  indeed  difficult  to 
reconcile  the  hopeless  prognoses  so  often  painted  in 


FRAUD  127 

court  by  certain  physicians,  with  the  startlingly  prompt 
recoveries  made  by  their  patients  once  a  satisfactory 
judgment  has  been  secured  at  the  hands  of  a  jury. 
It  is  beside  the  question  to  attempt  to  account  for  such 
conditions  upon  mere  abstract  theories  based  upon  the 
uncertainties  of  health  and  Hfe.  The  frequent  recur- 
rence of  such  incidents  lead  to  but  one  of  two  conclu- 
sions, either  the  insufficient  training  and  experience  of 
the  physician,  or  else  deliberate,  premeditated  fraud. 
In  considering  the  probable  value  of  a  claim,  due 
weight  must  necessarily  be  given  to  the  physical  condi- 
tion of  the  claimant  as  alleged  by  the  attending  physi- 
cian, and  likewise  to  such  facts  as  may  be  disclosed 
by  the  examination  of  the  defendant's  surgeon. 
Obviously,  greater  weight  will  attach  to  the  opinions  of 
attending  physicians  who  evince  a  disposition  to  be  fair- 
minded,  frank,  and  sincere,  than  to  those  who  incline 
toward  secrecy,  hypocracy,  and  deception,  however 
adroitly  they  may  endeavor  to  conceal  their  real 
attitude.  Fair  treatment  begets  fair  treatment.  It  is 
only  the  narrow  in  mind  and  spirit  who  shut  their  eyes 
to  so  patent  a  fact. 

129.     Location  as  affecting  fraud. 

Experience  in  claim  work,  more  especially  in  the 
populous  centers,  seems  to  establish  certain  fixed 
principles  which  in  a  measure  appear  to  have  a  direct 
bearing  upon  the  probability  of  deception  being  at- 
tempted in  the  presentation  of  claims  against  public 
service  corporations.  For  example,  the  ratio  of 
suspicious  cases  in  certain  specified  localities  within  a 
given  area  oftentimes  is  much  higher  than  is  true  of 
other  districts  immediately  adjoining.  Again,  the 
racial  traits  of  certain  people  undoubtedly  have  their 
influence,  while  even  the  character  of  occupation  not 


128  CLAIMS   FIXING   THEIR   VALUES 

infrequently  seems  to  inculcate  in  claimants  a  readiness 
to  resort  to  questionable  tactics  in  their  efforts  to  collect 
damages  for  an  alleged  injury,  real  or  fancied.  From 
this  it  is  not  to  be  inferred  that  fraud  always  is  present 
in  every  instance  of  this  character,  for  such,  of  course, 
is  not  the  case.  They  constitute,  however,  the  culture 
medium  upon  which  thrives  the  germ  of  fraud. 

130.  Boarding  and  alighting  accidents. 

Again,  certain  reasonably  accurate  deductions  may 
be  drawn  along  this  line  from  among  the  various  types 
of  accidents  which  occur  with  greater  or  less  frequency. 
For  instance,  in  electric  railway  circles,  the  boarding 
and  alighting  type  of  mishap  easily  takes  front  rank 
as  a  prolific  source  of  misrepresentation.  A  passenger 
negligently  attempts  to  board  or  to  alight  from  a  car 
which  is  in  motion.  Miscalculating  the  speed  at  which 
the  car  is  traveling,  he  is  thrown  and  injured.  At  the 
moment  and  in  the  presence  of  eye-witnesses  to  the  oc- 
currence, he  is  not  sufficiently  prestmiptuous  to  openly 
claim  a  premature  start,  which  would  imply  negli- 
gence upon  the  part  of  the  conductor  or  motorman  in 
charge  of  the  car.  Yet  the  following  day  finds  no  such 
hesitancy  upon  his  part.  From  then  on,  the  conviction 
becomes  stronger  within  him  each  day  that  his  injuries 
were  received  as  a  direct  result  of  the  negligence  of  the 
crew  in  starting  the  car  prematurely.  Cases  of  this 
nature  are  too  generally  known  and  well  understood 
to  require  extended  comment. 

131.  Nature  and  extent  of  injury. 

The  nature  and  extent  of  an  injury,  together  with  an 
approximation  of  the  probable  period  of  total  or  partial 
disability,  opens  up  a  field  of  tremendous  possibilities  to 
the  fraudulently  inclined.     In  dealing  with  eventualities 


FRAUD  129 

opinions  naturally  differ,  and  thus  it  is  that  men  of 
little  real  skill  or  ability  oftentimes  are  afforded  an 
opportunity  of  masquerading  under  the  guise  of  ap- 
parent respectability  in  setting  off  their  opinions 
against  those  of  men  intellectually  and  professionally 
their  superiors.  The  combination  of  a  van-dyke  beard 
and  several  years'  limited  experience  in  the  practice  of 
medicine  sometimes  produces  results  most  startling  in 
prognosticating  the  ultimate  effects  of  injuries  sus- 
tained in  actionable  mishaps. 

132.     Severity  of  injury. 

It  is  to  be  expected,  of  course,  that  the  severity  of  an 
injury  will  lose  nothing  in  the  telling  by  the  one  most 
concerned.  This  practice  has  become  so  universally 
recognized  that  proper  allowances  usually  are  made 
without  any  thought  of  intentional  fraud  necessarily 
being  imputed  to  the  claimant.  If,  however,  the  sub- 
sequent course  as  pursued  by  the  claimant,  or  his 
family  or  representatives,  gives  evidence  of  a  continua- 
tion of  this  apparent  effort  to  deceive,  then  the  entire 
matter  forthwith  becomes  proper  material  for  the 
closest  scrutiny  at  the  hands  of  the  investigator  or 
adjuster.  In  other  words,  allowances  may  be  made  in 
claim  work  for  the  frailties  of  human  nature,  but  not  for 
its  deliberate  misdeeds. 

133.     Mystery  surrounding  a  claim. 

We  have  never  been  able  fully  to  understand  the 
motives  which  actuate  certain  claimants,  or  their 
professional  representatives,  in  surrounding  their  case 
with  an  impenetrable  wall  of  secrecy  and  mystery, 
providing,  of  course,  that  there  is  nothing  of  a  question- 
able or  hazardous  nature  about  their  own  actions  in  the 
premises.  Such  tactics,  in  a  measure,  are  of  themselves 
9 


130  CLAIMS   FIXING   THEIR  VALUES 

presumptive  of  guilt.  Granting  for  the  moment  that 
such  conduct  does  not  necessarily  imply  intentional 
deception,  it  nevertheless  is  equally  true  that  identically 
the  same  methods  are  pursued  in  toto  in  practically  all 
cases  wherein  deliberate,  premeditated  fraud  is  to  be 
attempted. 

Passing  then  to  a  consideration  of  certain  additional 
features  of  claim  work  which  afford  still  further 
opportunities  for  the  introduction  of  fraud,  we  may 
summarize  a  portion  of  them  under  the  caption  of 
' *  Attempted  Concealments. ' ' 

134.     Attempted  concealments. 

The  first  of  these  may  be  designated  as  "previous 
physical  condition."  It  must  be  apparent,  even  to  the 
lay  mind,  that  the  existence  of  an  injury  or  disease 
prior  to  the  occurrence  of  the  mishap  imder  considera- 
tion may  be  of  the  most  vital  importance  in  attempting 
to  determine  the  extent  to  which  each  may  have  con- 
tributed its  share  toward  the  present  physical  condition 
of  the  claimant.  The  question  at  issue  now  is  not 
whether  the  present  injury  may  not  have  aggravated  a 
former  ailment,  but  rather  a  direct  attempt  upon  the 
part  of  the  claimant  to  conceal  even  the  existence  of  a 
former  condition  and  thus  to  enhance,  if  possible,  the 
value  of  whatever  legitimate  claim  for  damages  he  may 
now  possess  as  a  consequence  of  the  present  injury. 

By  way  of  illustration  take  the  case  of  a  suppositious 
claimant  who  has  entered  suit  for  damages,  alleging 
that  tuberculosis  developed  as  the  result  of  a  blow  upon 
the  chest  which  he  received  in  a  collision  between  cars 
of  the  defendant  company.  In  the  interval  before 
trial,  the  disease  has  made  considerable  progress  and 
the  chances  for  ultimate  recovery  are  not  especially 
promising.     The   claimant   insists   that   prior   to   the 


FRAUD 


131 


accident  in  question,  he  had  enjoyed  excellent  health, 
and  ascribes  his  present  illness  entirely  to  the  violent 
blow  received  in  the  collision.  Upon  investigation, 
however,  it  develops  that  he  had  been  threatened  with 
lung  trouble  for  a  space  of  several  years  before  the 
collision,  and  that  six  months  previous  to  that  date  he 
had  been  obliged  to  give  up  his  position  as  a  baker 
and  to  seek  outside  employment.  It  furthermore  was 
learned  that  for  over  a  year  previous  to  this,  he  had 
been  receiving  regular  medical  treatment  in  an  effort 
to  arrest  the  progress  of  the  disease. 

Such  cases  are  of  almost  daily  occurrence  with 
many  concerns.  Sometimes  the  deception  takes  one 
form,  sometimes  another.  Though  it  is  entirely  pos- 
sible that  a  recent  injury  may  have  aggravated  a  former 
condition,  it  is  idle  to  argue  that  attempted  conceal- 
ments of  this  character  are  anything  other  than  a  dis- 
tinct phase  of  premeditated  fraud. 

135.  Previous  accidents. 

Closely  allied  to  the  former  and  oftentimes  of  equal 
importance,  is  the  question  of  a  "previous  accident," 
together  with  its  resultant  claim  for  damages  and  pos- 
sible adjustment.  It  does  not  necessarily  follow,  of 
course,  that  a  former  mishap  need  have  any  direct 
bearing  upon  a  subsequent  injury,  but  the  mere  fact  of 
a  claimant's  attempting  to  conceal  its  existence  may 
fairly  be  regarded  as  furnishing  reasonable  grounds  for 
proper  investigation  with  a  view  to  determining  just 
what  influence,  if  any,  it  may  have  upon  the  present 
state  of  facts. 

136.  Professional  claimants. 

It  may  be  said  without  bias  that  claimants  are 
occasionally  encountered  who  are  not  averse  to  being 


132  CLAIMS   FIXING   THEIR   VALUES 

reimbursed  a  second  and  in  some  cases  even  a  third 
time  for  precisely  the  same  injury.  With  respect  to 
"professionals,"  of  course,  the  same  injury,  whether 
real  or  asstimed,  is  sometimes  traded  upon  repeatedly 
until  eventually  the  fraudulent  character  of  the  claim- 
ant is  exposed  and  his  activities  curbed.  Few  "pro- 
fessionals" successfully  operate  for  any  considerable 
length  of  time  nowadays,  because  of  the  thoroughness 
with  which  most  concerns  scrutinize  the  statements  of 
claimants  which  upon  investigation  are  found  to 
contain  "concealments."  The  latter  are  looked  upon 
as  a  prestimption  of  fraud,  in  some  degree  at  least,  until 
the  contrary  is  proven. 

137.     Deliberate  concealment. 

Another  point  which  may  be  noted  in  passing  is  the 
fact  that  the  liberal  adjustment  of  claims  not  infre- 
quently serves  to  arouse  latent  ambitions  in  claimants 
of  a  certain  type.  Superficial  investigations  and  un- 
businesslike methods  of  adjusting  claims  aid  very 
materially  in  recruiting  the  ranks  of  professional 
litigants.  Deliberate  "  concealments  "  necessarily  form 
no  inconsiderable  part  of  the  stock  in  trade  of  these 
people,  once  they  enter  upon  deception  as  a  means  of 
gaining  a  livelihood.  The  necessity,  then,  of  giving 
proper  consideration  to  the  possible  effects  consequent 
upon  the  occurrence  of  a  previous  accident  will  readily 
be  apparent. 

In  like  manner  attempts  to  conceal  the  actual  where- 
abouts of  a  claimant,  as  occasionally  attempted,  may 
properly  arouse  suspicion  as  to  the  good  intentions  of 
those  immediately  concerned.  Change  of  scene,  the 
advantages  of  different  surroundings,  and  freedom  from 
annoyance  usually  are  assigned  as  reasons  for  adopting 
such  a  course.     But  why  the  secrecy  and  mystery  of 


FRAUD  133 

the  proceedings  ?  Surely  no  responsible  concern  whose 
affairs  are  in  the  hands  of  reasonable,  fair-minded  men 
of  intelligence  would  desire  seriously  to  retard  the  speedy 
recovery  of  a  claimant,  to  its  own  detriment.  If 
experience  in  investigating  cases  of  this  nature  teaches 
us  anything,  we  fear  that  we  shall  have  to  look  else- 
where oftentimes  for  a  sufficient  explanation. 

138.     Substituted  claimants. 

Somewhat  analogous  to  this,  though  less  frequently 
attempted,  is  the  hazardous  subterfuge  of  substituting 
another  for  the  claimant  in  physical  examinations  in- 
tended to  determine  the  nature  and  extent  of  the  injury. 
This  daring  expedient  was  successfully  resorted  to,  for 
a  limited  space  of  time  some  years  ago,  by  an  organized 
band  of  conspirators  in  one  of  the  largest  cities  of  the 
east.  It  appears  that  the  principal  acrobat  of  the  co- 
terie, all  of  whom  were  women,  would  intentionally 
throw  herself  from  a  car  at  an  opportune  moment,  and 
w^ould  then  insist  upon  being  removed  to  her  home, 
usually  in  an  ambulance.  A  claim  would  then  be 
presented  to  the  company,  and  a  physical  examination 
of  the  claimant  speedily  followed.  Following  this 
examination  her  place  in  bed  was  promptly  taken  by 
another  member  of  the  band  who  would  attempt  to 
negotiate  a  settlement,  the  former  meanwhile  returning 
to  her  work  upon  the  firing  line.  Her  next  effort  would 
take  place  in  a  distant  part  of  the  city  and  consequently 
in  the  territory  of  a  different  examiner  and  adjuster. 
Again,  she  would  be  removed  to  the  quarters  of  still 
another  member  of  the  party,  who  in  due  time  would 
substitute  for  her,  following  the  customary  physical 
examination. 

The  suspicions  of  the  company  in  question  were 
shortly  aroused  by  the  similarity  of  the  mishaps,  and 


134  CLAIMS   FIXING   THEIR   VALUES 

after  the  band  had  been  permitted  to  continue  their 
operations  for  a  sufficient  length  of  time  to  insure 
convictions,  the  string  was  pulled,  and  the  entire 
outfit  sent  to  the  penitentiary  for  varying  terms  of 
imprisonment. 

139.     Fraud  as  to  earning  capacity. 

The  earning  capacity  of  claimants  has  for  many  years 
proven  fertile  ground  for  the  propagation  of  fraud. 
The  frequency  with  which  attempts  are  made  to  con- 
ceal the  real  facts  in  this  respect,  with  a  view  to  en- 
hancing the  value  of  claims,  no  longer  excites  surprise 
or  indignation  in  the  mind  of  the  experienced  adjuster. 
Constant  association  with  this  condition  rather  inclines 
him  to  look  upon  the  practice  as  a  matter  of  course. 

The  really  affluent  circumstances  of  the  proprietor 
of  the  fruit  stand  just  around  the  corner,  who  was 
popularly  supposed  to  be  living  from  hand  to  mouth, 
were  never  suspected  until  he  chanced  to  meet  with  a 
mishap.  The  fact  of  his  having  attempted  upon  several 
occasions  to  dispose  of  the  good  will  of  his  business  at  a 
figure  of  something  less  than  $600.00,  seems  not  to  deter 
him  in  the  least  from  attempting  to  show  regular  annual 
profits  of  several  thousand  dollars  from  the  enterprise. 

The  milliner,  further  down  the  street,  whose  credit 
long  since  has  been  regarded  with  suspicion,  suddenly 
discovers  that  for  several  years  past  her  net  income  has 
really  been  in  excess  of  her  wildest  dreams.  Clerks 
temporarily  become  assistant  managers  at  greatly  in- 
creased salaries,  while  all  manner  of  contingent  profits, 
benefits  and  advantages  are  inflated  for  the  occasion 
and  brought  forth  for  the  inspection  of  the  claim 
adjuster. 

In  seeking  a  fair  and  reasonable  approximation  of  the 
loss  sustained  in  this  direction,  the  adjuster  must  rely 


FRAUD  135 

in  some  measure  upon  the  exercise  of  good  common 
sense.  Not  infrequently  the  circumstances  are  such  as 
to  preclude  the  possibility  of  his  securing  a  reasonably 
accurate  estimate  of  the  probable  loss,  however  thor- 
ough may  be  his  investigation.  In  such  cases  experience 
and  good  judgment  must  determine  his  course. 

140.  Past  history  or  reputation. 

Claimants  occasionally  find  it  to  their  advantage  to 
attempt  to  conceal  their  past  history  or  reputation. 
In  some  instances  they  doubtless  possess  most  excellent 
reasons,  from  their  point  of  view  at  least,  for  so  doing. 
Especially  applicable  is  this  to  the  cases  of  "profession- 
als, repeaters,  and  floaters."  The  many  index  bureaus, 
both  local  and  national,  which  have  been  established 
throughout  the  country  within  recent  years  have  done 
much  toward  restricting  the  activities  of  this  class  of 
claimant. 

141.  Difference  of  communities. 

As  may  be  expected,  there  are  certain  well  defined 
distinctions  in  fraudulent  claim  work,  as  evidenced  in 
different  communities.  This  fact  is  not  always  fully 
appreciated,  even  by  men  of  years  experience  in  the 
work,  if  their  efforts  have  been  confined  principally  to 
some  particular  city  or  section.  In  some  instances, 
therefore,  deception  is  more  difficult  of  detection  than 
in  others,  requiring  oftentimes  radically  different 
methods  of  procedure  in  its  uncovering. 

By  way  of  illustration,  it  is  generally  conceded  that 
the  larger  the  community,  the  greater  the  proportion 
of  fraud,  especially  deliberate,  premeditated  fraud. 
Whether  country-bred  folk  are,  as  a  whole,  more  honest 
and  truthful  than  their  city  brethren,  we  do  not  presume 


136  CLAIMS   FIXING   THEIR   VALUES 

to  say,  but  it  will  invariably  hold  true,  as  a  general 
proposition,  that  claims  as  presented  by  the  former 
are  more  uniformly  truthful  and  accurate  as  to  details 
than  may  be  said  of  the  latter.  The  one  desires  only 
that  he  may  be  made  whole.  The  other  seems  dis- 
posed to  regard  his  claim  rather  in  the  light  of  an  in- 
vestment, with  the  sky  as  a  possible  limit. 

In  some  few  cases  the  people  even  of  an  entire  state 
exhibit  a  noticeably  different  attitude  toward  such 
matters,  as  compared  with  the  residents  of  other  states. 
Not  that  there  is  any  marked  increase  in  the  ratio  of 
fraudulent  claims  as  compared  with  honest,  legitimate 
ones,  but  rather  because  of  the  universality  of  its  people 
in  the  direction  of  exaggerating  essential  details  in 
presenting  claims  and  suits  for  damages  for  personal 
injuries.  In  other  words,  illustrations  of  what  we  have 
termed  casual  or  incidental  fraud.  Many  causes 
doubtless  have  contributed  their  share  toward  en- 
gendering this  condition,  but  the  liberality  of  juries  and 
of  legislators,  as  well  as  a  noticeable  hesitancy  upon  the 
part  of  the  courts  to  discourage  incipient  fraud,  un- 
questionably have  each  had  its  effect  upon  the  public 
mind. 

142.     Difference  of  occupations. 

It  is  of  peculiar  interest  to  note  that  to  a  certain 
limited  extent,  certain  occupations  or  callings  seem  to 
be  more  productive  of  fraudulent  claims  than  do  others. 
Association,  presumably,  in  large  measure  accounts  for 
this  peculiarity.  This  tendency  may  vary  as  between 
one  community  and  another,  and  while  the  principle 
involved  is  not  susceptible  of  any  inflexible  rule,  the 
distinction  nevertheless  is  one  which  is  generally  recog- 
nized, consciously  or  otherwise,  by  practically  every  in- 
vestigator and  adjuster  of  any  considerable  experience. 


FRAUD  137 

143.  Natives  of  different  countries. 

Distinctions  of  a  more  sharply  defined  character  with 
respect  to  the  subject  of  this  chapter  are  to  be  found 
among  the  natives  of  other  countries  who  have  selected 
this  as  their  future  home.  It  has  been  humorously 
observed  that  emigrants  frequently  land  at  Castle 
Garden,  whose  sole  possessions  consist  of  a  bland  smile, 
and  a  pencil  and  notebook  for  the  securing  of  witnesses. 
Suffice  to  say,  their  unfamiliarity  with  the  laws  of 
motion  not  infrequently  deprives  them  temporarily  of 
the  former,  and  affords  them  early  opportunity  to  make 
use  of  the  latter. 

Yet,  in  some  instances,  the  racial  traits  of  certain  of 
these  people  have  had  a  directly  contrary  effect,  their 
scrupulous  regard  for  honesty  and  truthfulness  augur- 
ing well  for  their  future  worth  as  citizens  of  the  country. 
In  justice  to  many  not  similarly  disposed,  however,  it 
must  be  admitted  that  the  example  set  them  at  times 
by  the  home  talent,  unfortunately,  may  have  given  them 
a  false  idea  of  the  proper  order  of  things. 

144.  Conclusion. 

These,  then,  constitute  additional  features  to  which 
proper  consideration  necessarily  must  be  given,  in  their 
proper  sphere,  in  attempting  to  determine  the  approxi- 
mate value  of  a  claim.  If  fraud  is  present,  its  nature 
and  extent,  as  well  as  its  probable  effect  upon  the  possi- 
ble value  of  the  claim,  if  any  there  be,  obviously  are 
factors  of  most  vital  importance.  Once  the  existence 
of  fraud  has  been  established  with  reasonable  certainty, 
it  then  is  in  order  to  ascertain  whether  the  circumstances 
are  such  as  to  render  recourse  to  the  courts  advisable, 
with  the  object  in  view  of  securing  indictments  against 
those  responsible  for  the  attempted  fraud,  in  which 
case  the  entire  matter  then  properly  comes  within  the 
jurisdiction  of  the  legal  department  for  final  disposition. 


CHAPTER  XI 

CONCLUSION 

145.  A  claim  as  a  problem. 

146.  Accurate  reasoning  as  an  asset. 

147.  Fair  treatment  of  claimant. 

146.     A  claim  as  a  problem. 

We  have  now  considered  the  principal  factors  that 
influence  claim  values.  To  the  claim,  agent  or  adjuster, 
a  claim,  aside  from  its  sentimental  aspect  is  a  problem, 
differing  from  all  other  problems  in  the  instability  of 
the  human  factors  that  determine  its  value.  It  is 
common  knowledge  that,  as  the  parts  of  a  well  adjusted 
machine  fall  naturally  into  place,  without  strain  or 
great  force,  some  men  fall  naturally  into  the  duties  of 
their  calling,  welcoming  great  difficulties  as  opportimi- 
ties  to  prove  their  worth.  This  may  be  genius  or 
talent,  and  such  men  often  know  by  instinct  what 
others  must  be  taught.  Nevertheless,  the  great  teacher 
who  supplies  to  a  certain  extent  the  lack  of  genius  in 
claim  work,  is  experience,  combined  with  an  effort  to 
learn.  Part  of  the  experience  and  part  of  the  learning 
we  have  endeavored  to  supply. 

146.     Accurate  reasoning  as  an  asset. 

The  most  important  quality,  the  one  that  alone  en- 
ables the  claim  agent  or  adjuster  to  deal  with  so  varied 
a  field  of  endeavor,  is  the  facility  of  reasoning  quickly 
and  accurately.  If  this  sounds  elementary  and  simple, 
let  any  one  try  to  think  of  ten  people  of  all  his  acquaint- 

138 


CONCLUSION  139 

ances  who  can  perform  this  simple  feat.  It  is  this 
faciHty  at  work  upon  the  facts,  the  law,  the  damages, 
that  enables  the  experienced  man  to  handle  claims 
with  satisfaction  to  his  employer,  and  generally  without 
earning  the  enmity  of  claimants  or  of  his  opponents. 
The  claim,  as  we  have  seen,  consists  of  three  elements : 
Facts,  law,  and  damages.  It  has  been  our  purpose  to 
indicate  the  proper  method  of  dealing  with  these 
elements. 

147.     Fair  treatment  of  claimant. 

It  must  be  apparent  to  those  who  have  gone  with  us 
in  this  little  journey  toward  determining  the  value  of  a 
claim,  that  we  have  in  a  sense,  handled  delicate  sub- 
jects without  gloves.  Let  it  be  understood,  therefore, 
that  the  object  of  this  book  is  not  to  furnish  anyone 
with  material  for  avoiding  the  payment  of  his  just 
debts  or  obligations.  A  claimant  who  has  received  a 
bona  fide  injury  and  has  presented  an  honest  claim, 
should  be  dealt  with  in  the  spirit  in  which  the  claim  is 
presented.  His  debt  is  one  to  which  is  attached  as  high  a 
moral  claim  as  exists.  If  the  claim  agent  or  the  adjuster 
expects  fair  dealing  from  those  who  present  claims  to 
him,  it  is  needless  to  remark  that  he  is  bound  to  main- 
tain an  equally  high  standard  of  fairness  himself;  if 
anything,  his  honor,  his  system  of  ethics  should  be 
higher  than  that  of  those  with  whom  he  comes  into 
contact.  The  real  function  of  a  claim  agent  is  to  ap- 
portion to  claimants,  fairly  and  equitably,  that  to  which 
they  are  rightfully  and  justly  entitled.  His  is  the  duty 
of  placing  a  monetary  value  upon  human  pain  and 
suffering. 

In  so  far  as  has  been  possible,  the  information  given 
has  been  made  concrete  and  definite.  The  subject 
obviously  is  one,  however,  which  is  not  susceptible  of 


14©  CLAIMS   FIXING   THEIR   VALUES 

arbitrary  standards  or  measures  of  damage  which  may 
fixedly  be  applied  to  particular  types  of  injuries  and 
with  uniformity  to  all  commtinities.  Much  necessarily 
must  depend  upon  one's  individual  experience  and 
viewpoint.  If,  therefore,  our  work  stimulates  interest 
and  discussion,  the  authors  will  rest  content. 


INDEX 

References  are  to  pages. 


Page 


ACCIDENTS, 

see  unreported  accidents. 

boarding  and  alighting,  127 

carelessness  as  a  source  of,  15 

claimant's  account  of,  no 

defendant  must  be  connected  with,  98 

determination  of  cause  of,  22 

exclusive  causes  of,  22 

fixing  responsibility"  for,  1 1 

negligence  the  test  of  liability,  1 1 

no  liability  for  pure  misadventure,  81 

non-liability,  43 

re-enacting  features  of,                              .  50 

scene  of,                                                     •  50 

unavoidable  accidents  not  source  of  liability,  2 1 

ACT  OF  GOD, 

carriers  not  liable  for,  2 1 

ADJUSTERS, 

accurate  reasoning  necessary,  137 

ADVERTISED  WITNESSES, 

definition  of,  47 

ALABAMA, 

employer's  liability,  92 

ALCOHOLISM, 

effect  upon  value  of  claims,  64 

APPLIANCES, 

reasonably  safe  and  suitable,  82 

what  kind  must  be  furnished,  82 

ARKANSAS. 

employer's  liability,  92 

ASSUMPTION  OF  RISK, 

what  does  employee  assume,  86 

when  employees  assume  risk,  85 

workmen's  assumption,  24 

141 


142  INDEX 

Page 


ATTENDANCE  OF  WITNESSES, 

securing, 

III 

ATTENDING  PHYSICIANS, 
statement  of. 

48 

ATTORNEYS, 

good  faith  in  handling  claims. 

125 

ATTRACTIVE  DANGERS, 
liability  for, 
turn-tables, 

18 
18 

BLAST, 

liability  for  exploding. 

19 

BLOWERS, 

liability  for  injuries  to  workmen  in, 

30 

BOARDING  AND  ALIGHTING  ACCIDENTS, 
fraud  as  to 

127 

BOILERS, 

explosions,  test  of  negligence. 

16 

BURDEN  OF  PROOF, 

evidence, 

who  must  bear, 

98 
98 

CALIFORNIA, 

employer's  liability. 

CARE, 

degree  of  care  required, 

must  be  proportionate  to  danger. 

19 
18 

CARE  ACCORDING  TO  CIRCUMSTANCES, 

plaintiff  must  have  used. 

24 

CARELESSNESS, 
tests  of. 

12 

CARLISLE  TABLES, 

expectancy  of  life  determined  by, 

67 

CARRIERS, 

duty  to  carry  safely. 

13 

CARRIERS  OF  PASSENGERS, 
duty  to  carry  safely. 

13 

CASUAL  FRAUD, 

how  it  must  be  dealt  with. 

122 

CHILDREN, 

Liability  for  injuries  on  turn-tables, 

18 

INDEX  143 

Page 
CHILDREN  OF  TENDER  YEARS, 

contributory  negligence  not  attributable  to,  26 

liability  for  injuries,  29 

CIRCUMSTANTIAL  EVIDENCE, 

conclusiveness  of,  102 

illustration  of,  103 

proof  of  fraud,  by,  106 

value  of,  102 

value  varies,  105 

CLAIM  AGENTS, 

accurate  reasoning  necessary,  137 

equipment  required,  2 

function  of,  138 

knowledge  of  human  nature  required,  2 

legal  knowledge  required,  2 

medical  knowledge  required,  a 

CLAIMANTS, 

dependence  of  others  upon,  33 

fair  treatment  of,  67 

interviewing,  3 

physical  and  mental  condition  of,  ■    49 

physical  examination  of,  33 

sex  of,  71 
CLAIMANT'S, 

former  condition  as  key  to  present  condition,  32 

CLAIMANT'S  STATEMENT, 

information  to  be  obtained  from,  7 

CLAIMS, 

adjustment  when  trifling,  114 

attitude  of  management  toward,  53 

basis  of  claim  for  personal  injuries,  3 1 

basis  of,  2 

condition  of  claimant  must  have  been  changed,  32 

diminution  of  value  of,  59 

earning  power  as  bearing  upon,  61 

effect  of  age  of  claimant  upon,  64 

factors  of  value  of,  6 

fair  treatment  of,  •? 

fraud  in  relation  to,  see  Chapter  10.  , 

impartial  treatment  of,  54 

increase  of  value  of,  66 

personality  of  those  interested,  74 

policy  of  companies  as  to,  75 


144  INDEX 


Pagb 


CLAIMS  (Continued), 

problem  offered  by,  137 

settlement  should  include  all,  68 

valuation  of,  2 

CLAIM  WORK, 

qualifications  for,  i 

relation  to  the  law,  i 

COGS. 

duty  to  guard,  88 

COLLISIONS, 

presumption  of  negligence,  99 

COLORADO, 

employer's  liability,  92 

COMMON  CARRIERS, 

duty  to  carry  safely,  13 

liability  of  carriers  of  freight,  21 

COMMON  EMPLOYMENT, 

association  as  a  test  of,  86 

definition  of,  86 

specific  instances  of,  86 

COMPANY  EMPLOYEES, 

interviewing,  44 

interviews  to  be  reduced  to  writing,  44 

COMPENSATION, 

fixing  value  of  loss  of  member,  35 

measure  of,  in  case  of  personal  injuries,  3 

personal  injuries  to  be  compensated  for,  3. 

COMPETENCY  OF  WITNESSES, 

general  rule,  113 

CONFLICTING  STATEMENTS, 

reconcilement  of,  108 

CONSIDERATION  WITNESSES, 

definition  of,  47 

CONTRIBUTORY  NEGLIGENCE, 

acts  done  to  save  life  or  property,  26 

children  of  tender  years  not  guilty  of,  26 

defense  in  action  for  negligence,  23 

diving  from  trapeze  as,  25 

drunkards  not  guilty  of,  26 

essentials  of,  25 

failure  to  raise  skirts  as,  25 


INDEX  145 

Page 
CONTRIBUTORY  NEGLIGENCE  (Continued), 

lunatics  not  guilty  of,  a 6 

must  bave  been  a  factor  in  producing  the  result,  25 

plaintiff's  right  of  action  barred  by,  23 

theory  of,  23 

when  it  will  defeat  a  right  of  action,  25 

COUNSEL, 

personality  as  affecting  claims,  74 

COWS, 

liability  for  exposing  to  fish  brine,  20 

DAMAGES, 

facts  in  mitigation  or  enhancement  of,  see  chapter  6,  page 

59,  et  seq. 
fixing  value  of  personal  injuries,  2 

payment  where  liability  uncertain,  •  9 

proximate  cause  the  basis  of  action  for,  19 

DANGER, 

care  must  be  proportionate  to,  18 

when  drivers  of  vehicles  may  scent,  13 

DANGEROUS  CALLING, 

workmen  cannot  recover  for  injuries  in,  24 

DANGEROUS  EMPLOYMENT, 

duty  to  instruct  employees,     .  84 

DANGEROUS  MACHINERY, 

failure  to  guard,  87 

DANGEROUS  SUBSTANCE, 

electricity,  18 

gun  powder,  18 

water  stored  in  reservoir,  18 

DANGEROUS  WORK, 

tests  of  liability  in,  80 

DEFENDANT'S  WITNESSES, 

definition  of,  46 

DEFINITIONS, 

Claim  agent.     Measurer  of  damages,  2 

negligence,  16 

DISINTERESTED  WITNESSES, 

definition  of,  47 

DRIVERS, 

when  danger  may  be  scented,  13 

10 


146  INDEX 

Pack 
DRUNKARDS, 

contributory  negligence  not  attributable  to,  26 

DUTIES, 

breach  as  negligence,  16 

damage  due  to  non-observance  of,  16 

failure  to  take  precaution  as  breach  of,                                      15 

non-performance  as  negligence,  16 

violation  of,  13 

when  are  duties  owing,  16 

EARNING  CAPACITY, 

fraud  as  to,  133 

effect  upon  value  of  claims,  61 

ELECTRIC  CARS, 

negligence  to  stand  on  platform  when  there  is  room 

inside,  25 

ELECTRICITY, 

dangerous  substance,  18 

ELEVATORS, 

injury  in  fall  of,  estimate  of  claim,  40 

EMPLOYEES, 

duty  of  care  toward,  78 

liability  for  injuries  to,  30 

selection  of,  care  required,  78 

duties  toward  employees,  81 

EMPLOYERS, 

safe  machinery  must  be  provided  by,  81 

safe  place  to  work  in  must  be  provided,  81 

EMPLOYER'S  LIABILITY, 

common  law  doctrine,  77 

law  of,  76 

list  of  statutes,  92 

scope  of,  31 

scope  of  acts,  89 

statutory  modification  of,  90 

United  States,  modification  of,  91 

ENGLAND, 

employer's  liability,  94 

EVIDENCE, 

burden  of  proof,  98 

character  and  strength  of,  Chapter  7,  pp.  96,  et  seq. 

carefiU  handling  of,  107 


INDEX  147 

Page 
EVIDENCE  (Continued), 

collection  of,  97 

definition,  96 

direct  evidence  the  best,  104 

distinction  between  legal  and  lay  evidence,  96 

distinction  between  lay  and  legal  evidence,  loi 

exaggerated  statements,  124 

expert  testimony,  100 

extent  of  term,                              r  97 

forms  of,  48 

hearsay,  99 

legal  term  limited  in  scope,  96 

manufacture  of,  123 

opinions,  100 

presumptions,  99 

reconcilement. of  conflicting  statements,  109 

res  gestae,  100 

what  is  included  in  ,                                               97 

EXAGGERATION, 

facts  colored  by,  44 

padding  claims  by,  124 

EXPECTANCY  OF  LIFE, 

Carlisle  tables  as  key  to,  67 

EXPERT  TESTIMONY, 

evidence,  100 

when  admissible,  100 

EXPLOSIONS, 

liability  for  exploding  blast,  19 

FACTS, 

ascertainment  of,  44 

classification  of,  7 

impartial  handling  of,  3 

investigation  of,  42 

investigation  to  be  thorough,  4 

self-deceit  in  investigation  to  be  avoided,                                   5 

treatment  of,  5 

treatment  of,  see  Chapter  5,  pp.  42,  et  seq. 

FAMILY  HISTORY, 

eflfect  upon  value  of  claims,  62 

FAULT,  ■ 

test  of.  1 1 


148  INDEX 


Page 


FELLOW  SERVANTS, 

choice  of,  82 

who  are,  85 

assumption  of  risk,  85 

FELLOW  SERVANT  DOCTRINE, 

scope  of,  84 

FIRE, 

cutting  fire  hose  as  cause  of,  20 

FIRE  HOSE, 

negligence  in  running  wagon  over,  20 

FIRES, 

liability  for  starting,  19 

FISH  BRINE, 

liability  for  placing  on  highway,  20 

FLOATERS, 

guarding  against,  53 

FLORIDA, 

employer's  liability,  92 

FOREIGNERS, 

when  claim  not  valid,  70 

FRAUD, 

attempted  concealment,  129 

bias  to  be  avoided,  120 

claimant  generally  a  party  when  it  exists,  124 

classification  of,  121 

conclusions  as  to,  136 

deliberate  concealment,  131 

difference  in  natives  of  different  countries,  136 

difference  of  communities,  134 

difference  of  occupations,  135 

earning  capacity,  133 

effect  on  claims,  3 

evil  tendencies,  119 
general  treatment  of,  see  Chapter  10,  page  119,  et  seq. 

imputation  must  not  be  hasty,  120 

location  as  affecting,  126 

manufactured  evidence,  123 

nature  and  extent  of  injury,  127 

past  history  or  reputation,  134 

previous  accidents,  130 

professional  claimants,  130 


INDEX  149 

Page 
FRAUD  {Continued), 

prompt  action  to  punish,  120 

severity  of  injury,  128 

substituted  claimants,  132 

FREIGHT, 

liability  of  carriers,  21 

GEORGIA, 

employer's  liability,  93 

GUN  POWDER, 

dangerous  substance,  18 

HEARSAY, 

affidavits,  99 

definition,  99 

evidence,  99 

testimony  on  a  former  trial,  99 

HOSPITALS, 

securing  information  from,  44 

HERNIA, 

liability  for,  3 1 

HOT  ASHES, 

liability  for  injuries  to  child  of  tender  years.  29 

IMPUTATION  OF  NEGLIGENCE, 

examples  of,  27 

INDIANA, 

employer's  liability,  93 

INEXPERIENCED  SERVANTS, 

negligence  toward,  79 

INJURED  EMPLOYEES, 

legal  rights  of,  75 

INJURIES, 

act  of  third  person  discharges  defendant,  21 

determination  of  cause  of,  14 

liability  when  due  to  acts  of  third  person,  28 

nature  and  extent  of,  see  Chapter  4,  page  33,  ^i  seq. 
plaintiff  not  to  recover  if  he  contributed  to,  24 

proximate  cause  of,  14 

seeking  direct  cause  of,  14 

INTERESTED  WITNESSES, 

definition  of,  46 

INVESTIGATIONS, 

clean  methods,  57 

exidence  of  all  kinds  to  be  considered,  102 


150  INDEX 


Page 


INVESTIGATIONS  {Continued), 

facts,  method  of,  42 

impartiality  of,  53 

interviewing  company  employees,  44 

principles  of,  43 

promptness  necessary,  5  5 

thoroughness,  56 

IOWA, 

employer's  liability,  93 

KANSAS, 

employer's  liability,  93 

KNOWLEDGE  OF  HUMAN  NATURE, 

claim  agents'  most  important  asset,  3 
LADDERS, 

liability  of  manufacturers,  19 

LATENT  DANGERS, 

duty  to  foresee,  83 

LAWFUL  ACTS, 

liability  when  done  in  unlawful  manner,  18 

LAW  OF  NEGLIGENCE, 

determination  of  liability,  by,  5 

LIABILITY, 

accidents  do  not  always  result  in,  9 

cases  where  it  is  certain,  10 

condition  of  claimant  must  have  been  changed,  32 

determination  of,  12 

determination  of,  5 

discovering  whether  facts  constitute  or  not,  10 

doubtful  cases,  settlement  of,  114 
facts  in  avoidance  of,  see  Chapter  3,  page  23,  et  seq. 

handling  cases  where  it  cannot  be  avoided,  1 1 

injuries  to  workmen,  30 

lawful  acts  done  in  unlawful  manner,  18 

qualifications  of,  23 

tests  of,  10 

want  of  care  as  a  test  of,  13 

LINEMAN, 

liability  when  injured  by  act  of  third  person,  28 

LITIGATION, 

computation  of  value  of  avoiding,  114 
factors  and  effects,  see  Chapter  9,  page  114,  et  seq. 

settlement  of,  114 

standards  of  care  established  by,  116 


INDEX  151 

Page 

LOSS  OF  EARNING  POWER, 

computation  of,  35  . 

LUNACY, 

expert  testimony  as  to,  100 

LUNATICS, 

contributory  negligence  not  attributable  to,       '       '  26 

MACHINERY, 

defects  in,  82 

modern  standard  of  efficiency  required,  78 

must  be  up  to  modem  standard  of  efficiency,  30 

responsibility  for  injuries  caused  by  defective,  X4 

MAINE, 

employer's  liability,  93 

MANUFACTURERS 

liability  for  defects  in  materials,  19 

MAPS, 

accidents  described  by,  51 

MASSACHUSETTS, 

employer's  liability,  93 

MASTER  AND  SERVANT, 

employer's  duty  of  care,  79 

law  of,  page  TT,  et  seq. 

MEDICAL  TESTIMONY, 

value  and  importance  of,  1 1 1 

MENOPAUSE  PERIOD, 

effect  upon  value  of  claims,  ,   •  71 

MINNESOTA, 

employer's  liability,  93 

MISHAP, 

determination  of,  cause  of,  21 

liability  or  non-liability.  Chapter  2,  page  9,  et  seq. 

MISSISSIPPI, 

employer's  liability,  93 

MISSOURI, 

employer's  liability,  93 

MODERN  STANDARD  OF  EFFICIENCY, 

machinery  must  be  up  to,  78 

MONTANA, 

employer's  liability,  93 


152  INDEX 


Pagb 


MOVING  VEHICLES, 

contributory  negligence  to  get  on  or  off,  23 

MURDER, 

circumstantial  evidence  of,  102 

MYSTERY, 

surrounding  claim  with,  128 

NATURAL  AND  PROBABLE  CONSEQUENCES, 

defendant's  duty  to  foresee,  20 

defendant  liable  only  for,  20 

intervening  causes  as  affecting,  20 

NEBRASKA, 

employer's  liability,  93 

NEGLIGENCE, 

accidents  resulting  from — liability,  11 

acts  making  liability  certain,  1 1 

ascertainment  of  precise  act  of,  1 5 

boiler  explosions,  16 

commission  and  omission  as  constituting,  17 

contract  against,  is  unenforcible,  81 

definitions  of,  16 

elements  of,  16 

employer's  liability,                                                           ,  77 

imputation  of,  27 

large  proportion  of  litigation  based  on,  2 

law  does  not  measure  degree  of,  25 

law  of,  to  determine  liability,  5 

omission  to  act  as,  17 

presumption  of,  99 

statutes.     Standards  of  care  prescribed  by.  17 

test  of,  1 1 

the  test  of  liability,  1 1 

NEW  JERSEY, 

employer's  liability,  93 

NEW  LAW, 

possibility  of  making,  115 

NEW  YORK, 

employer's  liability,  93 

NON-LIABILITY  ACCIDENTS, 

many  assume  liability  proportions,  43 

NON-SUITS, 

claimant's  skill  in  avoiding,  117 

counsel's  ability  to  avoid,  118 

uncertainty  of  obtaining,  117 


INDEX  153 

Paob 


NORTH  CAROLINA, 

employer's  liability, 

93 

OCCUPATION, 

effect  upon  value  of  claim, 

66 

OHIO, 

employer's  liability, 

93 

OKLAHOMA, 

employer's  liability. 

93 

OPINIONS, 

evidence, 

100 

ORDINARY  CARE, 

duty  to  use. 

17 

OREGON, 

employer's  liability. 

93 

PAIN  AND  SUFFERING, 

fixing  damages  for. 

2 

fixing  value  of. 

32 

factor  in  fixing  value  of  claim,     .    . 

35 

PAINTERS, 

injury  to,  estimate  of  damages. 

39 

PARALYSIS, 

claimant's  counterfeiting. 

34 

PASSENGERS, 

liability  of  companys  where  passenger  starts  car. 

28 

PATENT  DANGERS, 

duty  to  foresee. 

83 

PENNSYLVANIA, 

employer's  liability, 

93 

PERMANENT  INJURIES, 

computation  of  amount  to  be  paid  for. 

36 

liability  for. 

34 

PERSONAL  INJURIES, 

basis  of  claim  for. 

3^ 

computation  of  amount  to  be  paid  for. 

38 

computation  of  losses  due  to, 

35 

examples  of  adjustment  of  claims  for, 

38 

permanent  or  temporary, 

34 

valuation  of  claim  depends  upon  extent  of. 

41 

who  must  pay  for. 

5 

154  INDEX 

Faob 
PERSONS  UNDER  DISABILITY, 

liability  toward,  a6 

PHOTOGRAPHS, 

scene  of  accident,  use  of,  50 

taking  from  various  angles,  50 

PHYSICAL  EXAMINATION, 

claimant  to  be  subjected  to,  33 

factor  in  fixing  value  of  claim,  34 

how  it  affects  the  value  of  a  claim,  6 

how  it  affects  the  value  of  a  claim,  34 

scope  and  character  of,  49 

PHYSICAL  SUFFERING, 

fixing  damages  for,  a 

PHYSICANS, 

good  faith  in  handling  claims,  125 

physical  examination  performed  by,  34 

statements  of,  48 

PLAINTIFF'S  WITNESSES, 

definition  of,  46 

PLANS, 

accidents  described  by,  51 

PLATFORMS, 

contributory  negligence  to  stand  on  platform  of  car,  25 

POLICE  BLOTTER, 

taking  witnesses  names  from,  44 

POLICE  WITNESSES, 

definition  of,  47 

PREGNANCY, 

effect  upon  value  of  claims,  71 

PREJUDICE, 

effect  upon  question  of  settlement,  115 

PREMEDITATED  FRAUD, 

combatting,  121 

PRESUMPTIONS, 

evidence,  99 

when  negligence  presumed,  99 

PREVIOUS  ACCIDENTS, 

records  to  be  consulted,  52 


INDEX      .  155 

Paob 
PREVIOUS  INJURIES, 

aggravation  of,  32 

effect  upon  value  of  claim,  36 

physical  examination  to  determine  extent  of,  36 

liability  for,  31 

PROPERTY  DAMAGE, 

liability  for,  5 

PROXIMATE  CAUSE, 

basis  of  action  for  damage,  19 

PUBLIC  ENEMY, 

carriers  not  liable  for  act  of,  ai 

RAILROAD  TRESTLES, 

contributory  negligence  in  entering,  26 

RAILWAY  ACCIDENTS, 

disregard  of  signals  as  cause  of,  16 

RAILWAY  CARS, 

carelessness  in  management  of,  15 

passengers  starting  car,  liability  for  accidents,  28 

RAILWAY  COMPANIES, 

duty  to  provide  against  negligence,  13 

liability  where  injury  is  caused  by  passenger  starting 
car,  2  8 

RATE  OF  SPEED, 

factor  of  negligence,  24 

REASONABLE  CARE, 

employers  must  use,  83 

what  is,  79 

RELEASES, 

release  of  one  as  a  release  of  all,  2 1 

REPEATERS, 

guarding  against,  S3 

RESERVOIR, 

water  stored  in  as  a  dangerous  substance,  18 

RES  GEST^, 

definition,  100 

evidence,  1 00 

RESPONSIBILITY, 

fixing  responsibility  for  accidents,  1 1 


156  INDEX 

Page 
RIGHT  ANGLE  COLLISIONS, 

responsibility  of  parties  causing,  13 

SAFE  PLACE, 

employees  to  be  provided  with,  78 

SETTLEMENT, 

facts  influencing  questions  of,  see  chapter  7,  page  T^etseq. 

SHIP  OWNERS, 

liability  for  collision,  84 

SIGNALS, 

disregard  by  railways,  16 

SKIRTS, 

contributory  negligence  for  failure  to  raise,  25 

SOUTH  CAROLINA, 

employer's  liability,  93 

SOUTH  DAKOTA, 

employer's  liability,  93 

SPARK  ARRESTERS, 

liability  for  failure  to  provide,  19 

SPEED  REGULATIONS, 

disobedience  of,  16 

STANDARDS  OF  CARE, 

litigation  establishes,  116 

STATEMENT  OF  FACTS, 

claimant's  statement,  importance  of,  37 

STATUTES  OF  LIMITATION, 

eflEect  upon  value  of  claim,  70 

STEEPLE  JACK, 

'  dangerous  calling,  24 

STREET  RAILWAY, 

liability  does  not  result  from  acts  of  rioters,  18 

SUBPCENA, 

securing  attendance  of  witnesses  by,  1 1 1 

SURVIVAL  OF  ACTIONS, 

effect  upon  value  of  claim,  70 

TENNESSEE, 

employer's  liability,  93 

TEXAS, 

employer's  liability,  93 


INDEX  157 

Paob 

TRADE  USAGES, 

employers  bound  to  conform  to,  83 

TRAPEZE, 

contributory  negligence  to  dive  from,  25 

TRESPASSER, 

duties  owing  to,  17 

TRESPASSERS, 

liability  toward,  26 

TURN  TABLES, 

attractive  dangers,  18 

leaving  unguarded  as  source  of  liability,  19 

liability  for  injuries  to  children  playing  on,  18 

UNAVOIDABLE  ACCIDENTS, 

liability  does  not  arise,  21 

UNITED  STATES, 

employer's  liability,  93 

UNNECESSARY,  DANGERS, 

employees  not  to  be  subjected  to,  78 

UNREPORTED  ACCIDENTS, 

handling  of,  51 

UNUSUAL  DANGERS, 

unusual  precautions  necessary,  82 

UTAH, 

employer's  liability,  '  94 

VEHICLES, 

breach  of  duty  to  drive  safely,  15 

drivers  duty  to  exercise  care,  13 

VERACITY, 

testing,  of  witnesses,  112 

VERDICTS, 

standard  fixed  by  previous  verdicts,  115 

VERMONT, 

employer's  liability,  94 

VICE-PRINCIPALS, 

employers  liability  for  acts  of,  84 

liability  of  employer  for  acts  of,  30 

VICINITY  WITNESSES, 

definition  of,  47 


158  INDEX 

Paob 
VIRGINIA, 

employer's  liability,  94 

WANT  OF  CARE, 

test  of  negligence,  13 

WANTON  NEGLIGENCE, 

actions  based  upon,  17 

various  kinds  of,  16 

WASHINGTON, 

employer's  liability,  94 

WEARING  APPAREL, 

accidents  due  to,  50 

WISCONSIN, 

employer's  liability,  94 

WITNESSES, 

attendance  of,  in 

character  of,  108 

classification  of,  46 

competency  of,  113 

delay  in  consulting,  55 

handling  of,  48 

interested,  108 

interviewing,  46 

number  of,                                                       '  108 

uncertainty  due  to  occupation,  112 

veracity  of,  112 

WORKMEN'S  COMPENSATION, 
see  employer's  liabilty. 

YOUNG  SERVANTS, 

negligence  toward,  79 


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